People v. Casey

• Decision Date: 16 December 1980
• Docket Number: Docket No. 51723
• Citation: 102 Mich.App. 595,302 N.W.2d 248
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Edal Leslie CASEY, Defendant-Appellant. 102 Mich.App. 595, 302 N.W.2d 248
• Court: Court of Appeal of Michigan — District of US

Page 248

302 N.W.2d 248

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Edal Leslie CASEY, Defendant-Appellant.

Docket No. 51723.

102 Mich.App. 595, 302 N.W.2d 248

Court of Appeals of Michigan.

Dec. 16, 1980.

Released for Publication March 3, 1981.

[102 MICHAPP 597] Carl Ziemba, Detroit, for defendant-appellant.

Frank J. Kelley, Atty. Gen., Robert A. Derengoski, Sol. Gen., William L. Cahalan, Pros. Atty., E. Reilly Wilson, III, Appellate Chief Asst. Pros. Atty., Don W. Atkins, Asst. Pros. Atty., for plaintiff-appellee.

Before MAHER, P. J., and BRONSON and QUINN, ^* JJ.

PER CURIAM.

Following a jury trial in the Detroit Recorder's Court, defendant was found guilty of armed robbery in contravention of M.C.L. § 750.529; M.S.A. § 28.797 and possession of a firearm during the commission of a felony, contrary to M.C.L. § 750.227b; M.S.A. § 28.424(2). Defendant was sentenced to 10 to 20 years in prison for the armed robbery. Additionally, he received the mandatory two-year consecutive sentence for the felony-firearm conviction.

This case was originally disposed of via a motion to affirm granted by this Court on November 9, 1979. On May 19, 1980, the Supreme Court reversed and remanded to this Court for plenary consideration. ¹

At approximately 10:30 a. m., on March 31, 1978, the Shifrin-Willens Store at 2028 East Eight Mile Road in Detroit was robbed. On April 18, 1978, Sergeant Michael Doud of the Detroit Police Department received a call at the first precinct from [102 MICHAPP 598] an FBI undercover agent who stated that defendant Edal Casey was the man who perpetrated the robbery. The FBI agent gave no details and stated that his information came from "a source".

Following the call, Sergeant Doud had Officer Daniel Budz investigate defendant's previous arrest record to determine if Casey's physical appearance matched the description given by witnesses to the robbery. The officers determined that defendant's description did match that of the perpetrator of the offense.

Based on the phone call and the physical characteristics, Officer Budz called the fourteenth precinct, where defendant was being temporarily detained on a probation violation, and requested a "hold" on Casey (warrantless arrest) for investigation of armed robbery. During a Walker ² hearing, Officer Doud testified that he had defendant held; but for this arrest, defendant would have been free to go.

On April 19, 1978, defendant was told his Miranda ³ rights at 8:30 a. m. At this time, defendant was not interrogated and said nothing. Sergeant Doud explained that he wanted to conduct lineups prior to interrogation. Two lineups were conducted at 10:55 a. m. and 11:00 a. m. respectively. At each lineup, one witness tentatively identified defendant as the perpetrator of the Shifrin-Willens robbery, but neither was positive.

Following these lineups, a request for a "reverse writ" was made, and a judge of the Recorder's Court issued the writ. ⁴ Thereafter, defendant was [102 MICHAPP 599] put in another lineup at 1:00 p. m. A witness to the Shifrin-Willens robbery positively identified defendant at this time. At 1:40 p. m. defendant confessed to the crime. A second confession was obtained at 4:00 p. m.

Defendant contends that his arrest on the robbery charge was without probable cause, and thus, illegal. He further argues that his confessions are inadmissible as the tainted fruit of the unconstitutional arrest.

Before a police officer may effect an arrest without a warrant, he must have probable cause to believe that the suspect committed a felony. M.C.L. § 764.15(c); M.S.A. § 28.874(c). In People v. Walker, 401 Mich. 572, 259 N.W.2d 1 (1977), the Michigan Supreme Court formulated a test based on the United States Supreme Court decision in Aguilar v. Texas, 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723 (1964), for determining when probable cause to arrest may be considered established by an informant's tip. First, the informant must specify some of the underlying circumstances which led to his conclusion that the suspect committed the crime. Second, the officer must be able to articulate some of the underlying circumstances which led him to conclude the informant was reliable or credible. If this information, along with any other the police might have, would create an honest belief that probable cause existed in the mind of a reasonable and prudent person, a warrantless arrest is valid. People v. Wirth, 87 Mich.App. 41, 44, 273 N.W.2d 104 (1978), and authorities cited therein. In the instant case, neither of the conditions precedent to establishing the validity of a warrantless arrest were present.

Spinelli v. United States, 393 U.S. 410, 89 S.Ct. 584, 21 L.Ed.2d 637 (1969), is controlling. In [102 MICHAPP 600] Spinelli, the Court held that insufficient underlying circumstances were divulged by the informant to justify the issuance of a warrant. The warrant affidavit provided that the FBI "has been informed by a confidential informant that William Spinelli is operating a handbook and accepting wagers and disseminating wagering information by means of the telephones". 393 U.S. at 414, 89 S.Ct. at 588. The Supreme Court held:

"The tip does not contain a sufficient statement of the underlying circumstances from which the informer concluded that Spinelli was running a bookmaking operation. We are not told how the FBI's source received his information it is not alleged that the informant personally observed Spinelli at work or that he had ever placed a bet with him. Moreover, if the informant came by the information indirectly, he did not explain why his sources were reliable. Cf. Jaben v. United States, 381 U.S. 214 (85 S.Ct. 1365, 14 L.Ed.2d 345) (1965). In the absence of a statement detailing the manner in which the information was gathered, it is especially important that the tip describe the accused's criminal activity in sufficient detail that the magistrate may know that he is relying on something more substantial than a casual rumor circulating in the underworld or an accusation based merely on an individual's general reputation." 393 U.S. at 416.

See also, People v. Mosley (After Remand), 400 Mich. 181, 254 N.W.2d 29 (1977), cert. den. 434 U.S. 861, 98 S.Ct. 189, 54 L.Ed.2d 135 (1977).

The same problem is present in the case sub judice. The undercover FBI agent who informed Sergeant Doud that defendant was the perpetrator of the robbery provided no facts which led him to this conclusion, except that he had been so informed by his secret source. None of the source's reasons for concluding that defendant committed the crime were divulged.

[102 MICHAPP 601] The prosecution contends, however, that the tip was corroborated by other evidence, providing a reasonable basis for believing defendant had committed the crime. This corroboration is said to be the fact that defendant's arrest record matched the "general description" of the culprit given by the witnesses who observed the robbery. An examination of the record, however, reveals nothing peculiarly distinctive about the defendant's appearance. When asked, "What about the description caught your eye?", Officer Budz answered, "the height mostly". When asked what the height was, Budz responded, "I can't remember, six-one, six-three, something like that". When asked if the height and the tip were the only reasons why he arrested defendant, Officer Budz indicated in the negative. Another reason was "instinct" an instinct which he admitted was unsupported "by any hard evidence or facts" aside from those mentioned.

A later description Officer Budz gave of the Shifrin-Willens robber based on witnesses' observations indicated that the culprit was a black male, in his twenties, medium build, medium complexion, no distinguishing marks, and no facial hair. This description would include literally thousands of persons. Moreover, defendant was not clean shaven. ⁵ The description simply did not provide substantial corroborative evidence of the tip. Mosley, supra.

[102 MICHAPP 602] The reliability of the source of information was also not adequately established. In Spinelli, supra, the Court held that where the police affiant seeking a warrant merely swears that his confidant is "reliable", this is insufficient to establish his credibility. See also, People v. Atkins, 96 Mich.App. 672, 679, 293 N.W.2d 671 (1980), lv. den. 409 Mich. 876 (1980). In the instant case, the Detroit police officers merely assumed that the FBI undercover agent's informant was reliable. No testimony was even offered that the agent swore his source was reliable, let alone testimony that the source had provided useful information in the past.

Sergeant Doud, who took the call from the undercover FBI agent, forthrightly admitted that he had no reason to believe the agent's source was credible. He further stated that he was primarily relying on the credibility of the FBI agent, himself. The agent's credibility, however, was of secondary importance. Information from an unreliable source does not become better because it has been filtered through a credible individual.

The fact is that defendant was illegally detained. He was held for "investigation of armed robbery". An investigatory arrest is an illegal arrest. It is an admission that probable cause to arrest does not exist. People v. Martin, 94 Mich.App. 649, 653, 290 N.W.2d 48 (1980); Brown v. Illinois 422 U.S. 590, 95 S.Ct. 2254, 45 L.Ed.2d 416 (1975). In the instant case, Sergeant Doud conceded that at the time he had defendant detained, insufficient evidence existed to obtain an arrest warrant for armed robbery.

Before leaving this issue, we also note that the police officers in no way improved their legal position by obtaining a "reverse writ" from the Detroit Recorder's Court. A prisoner's right to [102 MICHAPP 603] habeas corpus is granted by Const. 1963, Art. 1, § 12. Habeas corpus is a proceeding the purpose of which is to cause the release of persons...