People v. Hamoud, 46066

• Citation: 315 N.W.2d 866,112 Mich.App. 348
• Decision Date: 18 November 1981
• Docket Number: No. 46066,46066
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Hassin HAMOUD, Defendant-Appellant. 112 Mich.App. 348, 315 N.W.2d 866
• Court: Court of Appeal of Michigan (US)

Page 866

315 N.W.2d 866

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Hassin HAMOUD, Defendant-Appellant.

No. 46066.

112 Mich.App. 348, 315 N.W.2d 866

Court of Appeals of Michigan.

Submitted May 12, 1981.

Released for Publication Feb. 22, 1982.

Decided Nov. 18, 1981.

[112 MICHAPP 349] Frank J. Kelley, Atty. Gen., Robert A. Derengoski, Sol. Gen., William L. Cahalan, Pros. Atty., Edward Reilly Wilson, Chief

Appellate Asst. Pros. Atty., and A. George Best, II, Asst. Pros. Atty., for the people.

Sheila N. Robertson, Asst. State Appellate Defender, for defendant on appeal.

Before WALSH, P. J., and RILEY and KUHN ^*, JJ.

PER CURIAM.

On June 17, 1978, the owner of a machine shop in Dearborn, Michigan, awakened while sleeping in his establishment, confronted an intruder in the act of burglarizing the premises. At that time the burglar put his hands up and said, "God bless you, man. Don't shoot. I'm stealing. I'm desperate." The man then fled. Police were summoned and a window was found to be broken and tools were discovered to be missing. The owner of the shop described the burglar as being a white male, about 5 feet 10 inches tall, weighing 150-160 pounds with a bush-type "afro" [112 MICHAPP 350] haircut, a scraggly looking beard and a particular gap in his teeth.

From this description, police prepared a photographic display of more than ten individuals, including defendant, for the victim. The photographic display took place one or two days after the offense. No identification was made by the victim, in part because defendant's photo in the photo array was one that had been made in 1972.

Within the same time frame, while investigating another burglary which had taken place within two blocks of this crime, the officer in charge of this case noticed a man remarkably like the one described to him by the victim in this case in the Dearborn Police Department offices. Intrigued by the close match-up in physical characteristics with the description given him by the victim in this case, the officer told others present that the defendant should be arrested for "investigation" of breaking and entering. On June 20, 1978, defendant was arrested and, while in custody, made two statements to the police. A corporeal line-up was held on June 21, 1978, at which the complainant identified the defendant. Thereafter, an arrest warrant charging the defendant with breaking and entering was obtained.

A bench trial was held and defendant was convicted of being guilty of breaking and entering but mentally ill. He was sentenced to serve from three to ten years imprisonment. He appeals by right.

Defendant raises several issues on appeal, two of which we find deserving of comment.

First, defendant argues that his arrest for "investigation" on the ground that he was "suspected" of breaking and entering was unlawful. If so, the second statement that defendant made to police while in custody was not admissible at trial. [112 MICHAPP 351] 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).

Probable cause is the single basis for arrest without a warrant and a fundamental requirement for obtaining an arrest warrant. The probable cause requirement has deep and fundamental roots in Anglo-American law and in the fundamental law of this country. U.S.Const., Am. IV; Const.1963, art. 1, § 11. Constitutional law, Michigan statutes and court decisions narrowly circumscribe the right of the police to detain any citizen for investigative purposes. M.C.L. § 764.15; M.S.A. § 28.874, Terry v. Ohio, 392 U.S. 1, 22, 88 S.Ct. 1868, 1880, 20 L.Ed.2d 889 (1968); Adams v. Williams, 407 U.S. 143, 148-149, 92 S.Ct. 1921, 1924, 32 L.Ed.2d 612 (1972); People v. Jeffries, 39 Mich.App. 506, 511, 197 N.W.2d 903 (1972); People v. Lillis, 64 Mich.App. 64, 70, 235 N.W.2d 65 (1975). Thus, while a "reasonable suspicion" that criminal activity has been or is taking place may suffice for a brief stop to investigate or determine identity, probable cause alone is the foundation for a valid arrest. Lillis, supra, 64 Mich.App. at 70, 235 N.W.2d 65.

The use of the words "investigation", "suspicion" and "suspect" by the arresting officers is not, nor should it be, the single focus of a court's inquiry into the presence or absence of probable cause. Rather, the court should look to facts which support or detract from the assertion by the prosecution, having the burden of proof, that the arrest was supported by probable cause. Our courts have repeatedly held that probable cause to justify an arrest means facts and circumstances within the officer's knowledge that are sufficient to warrant a prudent person, or one of reasonable caution, in believing in the circumstances shown, that the suspect has committed, is committing or is about [112 MICHAPP 352] to commit an offense. Michigan v. DeFillippo, 443 U.S. 31, 37, 99 S.Ct. 2627, 61 L.Ed.2d 343 (1979). Adams v. Williams, supra, 407 U.S. at 149, 92 S.Ct. at 1924. Tested by this standard, the police officers here had more than suspicion, despite their use of that...