People v. Dixon
| Decision Date | 30 October 1974 |
| Docket Number | No. 12,12 |
| Citation | 392 Mich. 691,222 N.W.2d 749 |
| Parties | PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Herman DIXON, Defendant-Appellant. |
| Court | Michigan Supreme Court |
St. Clair County Pros. Atty. by Peter R. George, Chief App. Atty., Robert H. Cleland, Asst. Pros. Atty., Port. Huron, for People.
State App. Defender Office by Norris J. Thomas, Jr., Asst. Defender, Detroit, Rolf Berg, Researcher, for Dixon.
Before the Entire Bench.
Herman Lester Dixon appeals his conviction of unlawful possession of a narcotic drug. 1
Dixon was arrested for a traffic offense and searched at the scene; nothing was found. Heroin was discovered during a search at the police station. Contending that both his arrest and the search were illegal, Dixon moved before and at trial to suppress the heroin.
The Court of Appeals, in holding that Dixon was validly arrested, 'adopt(ed) the following rules':
2
We agree with the Court of Appeals that Dixon's arrest was valid, not because a police officer may arrest for the commission of a misdemeanor on probable cause--he may not--but because the misdemeanor was committed in the arresting officer's 'presence.' 3 We, nevertheless, reverse Dixon's conviction because the search at the police station was in derogation of his statutory right to bail.
Two State Police officers stopped the automobile Dixon was driving at about 3:00 a.m. because they thought the vehicle was making excessive noise and suspected a faulty muffler. 4 When Dixon produced his driver's license, one of the officers observed a second license in his wallet which aroused his suspicion and caused him to radio head-quarters. He was advised that Dixon's license had been suspended. Dixon was then arrested for operating a motor vehicle with a suspended license. 5 A contemporaneous frisk revealed no weapon and he was transported to the county jail.
A statute authorizes a peace officer to make a warrantless arrest for 'any felony or misdemeanor committed in his presence.' It also authorizes warrantless arrests for a felony on probable cause and in certain other circumstances, but there is no authorization for a warrantless arrest for a misdemeanor whether on probable cause or on any other basis unless it was 'committed in his presence.' 6
Dixon argues that the arrest was invalid because the officer 'did not learn from his own senses' that Dixon was committing a misdemeanor. Knowledge of a necessary element of the offense was not gained from the officer's 'personal observation' but from a hearsay radio report.
In holding that the police could arrest on probable cause ('such information as would lead a reasonable person to conclude'), the Court of Appeals noted several jurisdictions in which a 'a police officer may properly arrest without a warrant if he has probable cause to believe from personal observations that a misdemeanor has been committed in his presence.' 7 All but one of these cases were civil actions against the arresting police officer. In the lone criminal case cited by the Court of Appeals, State v. Del Vecchio, 149 Conn. 567, 182 A.2d 402 (1962), the statement was dictum; the Court held that the arrest was not lawful.
At common law a police officer was authorized to arrest without a warrant for a misdemeanor only when it constituted a breach of the peace and the breach occurred in his presence. 8 Most states, including Michigan, have abandoned the breach of the peace limitation. Some have also authorized warrantless arrests for misdemeanors on probable cause. But a large number of states, like Michigan, have retained the presence requirement. 9
Whatever may have been its historical origins, we perceive the principal present day importance of the presence requirement to be that a police officer may not utilize information received from third persons as a basis for a warrantless misdemeanor arrest. When the basis of the officer's belief that the defendant has committed a misdemeanor is information imparted to him by, say, victims, witnesses or informers, he must present the evidence to a magistrate and seek an arrest warrant. He may not act on his own appraisal of the reasonableness of the information.
Another police officer is not a third person within that policy. Courts in other jurisdictions have developed a 'police team' qualification of the presence requirement, permitting officers who are working together on a case to combine their collective perceptions so that if the composite otherwise satisfies the presence requirement that requirement is deemed satisfied although the arresting officer does not himself witness all the elements of the offense. 10
In this case the arresting officer saw Dixon driving a vehicle. Another officer examined the official records which showed that his license was suspended. Their combined information satisfies, in our opinion, the purpose and policy of the presence requirement.
We recognize that the official record is in a sense hearsay. It would not, however, be in accord with reason to deny police officers the power to act on information of this kind officially compiled in a public record.
The only person who might know of his own knowledge whether Dixon's license was suspended was Dixon himself. He alone was likely to know whether an order of suspension had been entered and remained in force and effect. But even his perceptions may have been mistaken as, not being a lawyer and probably not having examined all the pertinent records, he could not be entirely sure his official status.
In point of fact, about the only way to establish whether a person's operator' license is suspended at a given moment is to conduct a judicial hearing at which all persons who have been involved in proceedings to suspend and to reinstate could testify and an adjudicated could be made; but even that would be subject to appeal.
We hold that in deciding whether to arrest for the misdemeanor of driving without an operator's license, a police officer may properly rely on information obtained by radio from another police officer who is examining an official record, that such information becomes part of the arresting officer's knowledge which he can consider in deciding whether a law violation has occurred in his presence.
We reiterate that this qualification should not be read as justifying warrantless misdemeanor arrests on other 'reasonable' or 'dependable' information. We especially emphasize that police officers may not arrest on information obtained from persons who are not police officers, e.g., victims, witnesses and informers or on the basis of information obtained from a police officer who is relying on information obtained from a person who is not a police officer.
Upon arrival at the jail, Dixon was ordered into a small room and there directed by one of the officers and the jail turnkey to remove his sweater. The turnkey's investigation of the sweater's pocket revealed several small packets wrapped in tissue paper. The packets were opened revealing a white substance which was thought to be and later analysis proved to be heroin. Dixon was then arrested for unlawful possession of a narcotic drug. Additional heroin was discovered during an intensive 'strip search' of Dixon incidental to the narcotic violation arrest.
Dixon had been searched for weapons before he arrived at the jail. The search at the jail cannot be defended as an inventory search unless the authorities could justifiably incarcerate him. Dixon had a statutory right to immediate bail, a right rooted in Const.1963, art. 1, §§ 15 and 16, as well as the Eighth Amendment. The search at the jail was in derogation of that statutory right. The evidence seized in the search should have been suppressed and, therefore, Dixon's conviction is reversed.
A statute requires that whenever a person is arrested without a warrant for a misdemeanor (now, since April 1, 1971, more particularly defined: 'punishable by imprisonment for not more than 90 days or a fine of not more than $100.00, or both' 11 precisely the penalty for the traffic offense for which Dixon was arrested) the arresting officer shall take him without unnecessary delay before the most convenient magistrate to answer the complaint. 12
The prosecutor argues that these provisions for immediate bail are inapplicable because Dixon was arrested in the middle of the night and no magistrate was then available. It was, therefore, necessary to incarcerate him at least until morning.
The statute provides, however, that if no magistrate is available, the arrested person may 13 recognize to the direct supervisor of the arresting officer or department (and now, the sheriff as well or his deputy in charge of the county jail) by leaving a sum of money not to exceed $100 with exceptions not here pertinent.
The district court in the district where the jail was located had established by general order a standard bail of $35 for the release of an offender charged with driving without a license. 14
The prosecutor, citing an opinion of the Attorney General, 15 contends that this statute authorizing misdemeanants to post bond does not apply to traffic arrests.
Section 7, before its amendments effective April 1, 1971, provided that the act 'shall not affect sections 727 and 728' 16 of the Motor Vehicle Code, and, after amendment, provides that it 'shall not affect section 728' of the Motor Vehicle Code. 17
The 'non-affected' section...
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