People v. Davenport
| Decision Date | 25 April 1973 |
| Docket Number | Docket No. 14213,No. 2,2 |
| Citation | 46 Mich.App. 579,208 N.W.2d 562 |
| Parties | PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Theodore DAVENPORT, Defendant-Appellant |
| Court | Court of Appeal of Michigan — District of US |
H. James Starr, Starr & Needham, Lansing, for defendant-appellant.
Frank J. Kelley, Atty. Gen., Robert A. Derengoski, Sol. Gen., Raymond L. Scodeller, Pros. Atty., for plaintiff-appellee.
Before BRONSON, P.J., and R. B. BURNS and DANHOF, JJ.
When a police officer attempted to arrest defendant without a warrant for the misdemeanor of being a disorderly person by uttering obscene words in public, defendant resisted. A District Court jury found defendant not guilty of the charge of being a disorderly person. Lansing ordinances, ch. 22, § 22--13(7). Some months later a Circuit Court jury convicted defendant of the felony of resisting arrest. M.C.L.A. § 750.479; M.S.A. § 28.747.
Prior to his trial in Circuit Court defendant timely moved to dismiss the charge of resisting arrest. He claimed that his acquittal on the charge of being a disorderly person was a finding that the arrest he admittedly resisted was an illegal arrest, that the principal of collateral estoppel prohibited relitigation of the legality of that arrest, and that therefore the prosecution could never prove that he resisted a legal arrest. The motion was denied. The trial judge held that a police officer is entitled to arrest an individual for a misdemeanor without a warrant if that officer has reason to believe from personal observation that the individual is committing or has just committed a misdemeanor in the officer's presence. He also held that an acquittal establishes only that the jury doubted defendant's guilt, not that the arresting officer had no reason to believe that a crime was being committed in his presence.
Defendant appeals the denial of his motion to dismiss.
If his arrest for being a disorderly person was illegal, defendant was entitled to resist that arrest. People v. Krum, 374 Mich. 356, 132 N.W.2d 69 (1965), cert. den., 381 U.S. 935, 85 S.Ct. 1765, 14 L.Ed.2d 699 (1965). The burden is on the prosecution to prove that the arrest resisted was a legal arrest. People v. Reed, 43 Mich.App. 51, 203 N.W.2d 756 (1972).
The fact that defendant was acquitted of using vile and obscene language has no bearing upon the legality of the arrest, anymore than the finding of guilty in a criminal proceeding would legalize an arrest unlawful when made. Coverstone v. Davies, 38 Cal.2d 315, 322, 239 P.2d 876, 880 (1952), cert. den. sub. nom. Mock v. Davies, 344 U.S. 840, 73 S.Ct. 50, 97 L.Ed. 653 (1952).
A police officer may arrest an individual for a misdemeanor without a warrant if the misdemeanor was committed in the officer's presence or if, from personal observations, the officer has reason to believe that a misdemeanor was committed in his presence. M.C.L.A. § 764.15(a); M.S.A. § 28.874(a). People v. Bishop, 30 Mich.App. 204, 186 N.W.2d 374 (1971); People v. Dixon, 45 Mich.App. 64, 205 N.W.2d 852 (1973).
A police officer has reason to believe that a misdemeanor has been, or is being, committed in his presence if the circumstances observed by him would lead a reasonable person to conclude that he was witnessing the commission of a misdemeanor by the person arrested. Coverstone v. Davies, Supra.
The principle known as collateral estoppel is applicable to civil and criminal cases alike. When a question of fact is put in issue and determined by a competent trier of fact it cannot afterwards be disputed between the same parties. Simpson v. Florida, 403 U.S. 384, 91 S.Ct. 1801, 29 L.Ed.2d 549 (1971); People v. Albers, 137 Mich. 678, 100 N.W. 908 (1904).
However, the principle is not applicable in the present case. In the defendant's trial for the use of vile and obscene language the issue was the defendant's guilt. In the present case the issue is whether or not the police officer acted as a reasonable person in determining if a misdemeanor was committed in his presence. The jury determined the officer acted reasonably.
Affirmed.
Believing that the narrow strictures of the statutory authority permitting police officers to arrest persons for misdemeanors conforms with defendant's allegation, I must dissent.
It is axiomatic that the prosecution must establish the legality of defendant's arrest when he is on trial for resisting arrest. People v. Reed, 43 Mich.App. 51, 203 N.W.2d 756 (1972). This conclusion is dictated by the fact that the language of the statute under which defendant was charged 1 proscribes only those attempts to resist police officers while 'in their Lawful acts'. (Emphasis added.) If the arrest is unlawful, a person is justified in using such reasonable force as is necessary to prevent or resist the arrest. People v. Gray, 23 Mich.App. 139, 178 N.W.2d 172 (1970), and People v. Bonello, 25 Mich.App. 600, 181 N.W.2d 652 (1970), citing People v. Krum, 374 Mich. 356, 132 N.W.2d 69 (1965), cert. den. 381 U.S. 935, 85 St.Ct. 1765, 14 L.Ed.2d 699. It is at this point that my agreement with the majority ceases.
Defendant was arrested for allegedly committing the misdemeanor of being a disorderly person by uttering obscene words in public. The validity of the charge of resisting arrest predicated upon this misdemeanor appropriately depends upon the scope of police officers' statutory authority to arrest persons for the commission of misdemeanors. M.C.L.A. § 764.15; M.S.A. § 28.874, in pertinent part provides:
'Any peace officer may, without a warrant, arrest a person--
'(a) For the commission of any felony or Misdemeanor committed in his presence;
'(c) When a Felony in fact has been committed and he has Reasonable cause to believe that such person has committed it;
'(d) When he has Reasonable cause to believe that a Felony has been committed and Reasonable cause to believe that such person has committed it * * *.' (Emphasis added.)
This language indicates that a police officer may arrest a person without a warrant only for misdemeanors committed in his presence. The modifying phrase, 'reasonable cause to believe', is significantly absent from the provision regarding misdemeanors and applies only to felonies.
The majority has rewritten the clear language of the statute by relying upon the new rule enunciated in People v. Dixon, 45 Mich.App. 64, 205 N.W.2d 852 (1973), which provides that a police officer may arrest a person 'if, from personal observations, the officer has reason to believe that a misdemeanor was committed in his presence'. This alternative standard of 'reasonable belief' obfuscates the distinction drawn by the statute between the...
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