People v. Hill

• Decision Date: 16 January 1973
• Docket Number: No. 1,Docket No. 12101,1
• Citation: 205 N.W.2d 267,44 Mich.App. 308
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Joseph HILL, Defendant-Appellant
• Court: Court of Appeal of Michigan — District of US

Page 267

205 N.W.2d 267

44 Mich.App. 308

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Joseph HILL, Defendant-Appellant.

Docket No. 12101.

Court of Appeals of Michigan, Division No. 1.

Jan. 16, 1973.

Released for Publication March 27, 1973.

John D. Lazar, Southfield, for defendant-appellant.

Frank J. Kelley, Atty. Gen., Robert A. Derengoski, Sol. Gen., William L. Cahalan, Pros. Atty., Dominick R. Carnovale, Chief, Appellate Div., John L. Thompson, Asst. Pros. Atty., for plaintiff-appellee.

Before LESINSKI, C.J., and FITZGERALD and J. H. GILLIS, JJ.

J. H. GILLIS, Judge.

Defendant was convicted of armed robbery. M.C.L.A. § 750.529; M.S.A. § 28.797. On appeal we affirm.

On May 14, 1968, two men entered a store owned by Robert Hamel, forced him, his employees and customers to lie on the floor at gunpoint, took the money from the cash registers, and fled. Defendant was later identified by Mr. Hamel, apparently from a photograph, and police sought and obtained a warrant for his arrest.

The complaint ¹ which provided the basis for the arrest contained a bare recitation of the crime in the statutory language. It named the defendant as the perpetrator, and was signed by the police detective as the complaining witness. It was primarily stated in conclusory terms. None of the underlying facts which formed the basis for the conclusions were given. Although sworn to by the police detective, it contained no affirmative allegation that it was made on his personal knowledge. Indeed, the nature of the crime made it appear unlikely that it had been witnesses by a police detective, such that he could have had personal knowledge of the commission of the crime or the identity of the defendant.

The people admit in their brief that:

'The complaint in the instant case was made positively by the officer who signed as complainant, but was in fact made on information and belief of that officer from information received from the victim and Res gestae witness to the armed robbery.'

On appeal, defendant contends that that document could not support the independent judgment of a disinterested magistrate as to the existence of probable cause to believe the defendant guilty of the crime charged. Since that document was defective, his arrest under it constituted a violation of the rights guaranteed him by the Fourth and Fourteenth Amendments. Furthermore, since his arrest was illegal, jurisdiction over his person never attached, and his conviction is void.

The requirements for a valid arrest warrant under the Fourth and Fourteenth Amendments have been set forth in Giordenello v. United States, 357 U.S. 480, 78 S.Ct. 1245, 2 L.Ed.2d 1503 (1958), and most recently in Whiteley v. Warden of Wyoming State Penitentiary, 401 U.S. 560, 91 S.Ct. 1031, 28 L.Ed.2d 306 (1971).

'The purpose of the complaint, then, is to enable the appropriate magistrate, here a Commissioner, to determine whether the 'probable cause' required to support a warrant exists. The Commissioner must judge for himself the persuasiveness of the facts relied on by a complaining officer to show probable cause. He should not accept without question the complainant's mere conclusion that the person whose arrest is sought has committed a crime.' Giordenello, supra, 357 U.S. 480, 486, 78 S.Ct. 1245, 1250, 2 L.Ed.2d 1503, 1509 (1958).

In order to accomplish this result, the magistrate must at the very least be supplied 'the facts relied on by a complaining officer' and not merely his conclusions. In must appear that the affiant spoke with personal knowledge, or else the sources for his belief must be indicated. Where his belief is based on information from other persons, some basis for their credibility must be shown.

'Giordenello v. United States, Supra, and Aguilar v. Texas, 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723 (1964), established that a magistrate is intended to make a neutral judgment that resort to further criminal process is justified. A complaint must provide a foundation for that judgment. It must provide the affiant's answer to the magistrate's hypothetical question, 'What makes you think that the defendant committed the offense charged?' This does not reflect a requirement that the Commissioner ignore the credibility of the complaining witness. There is a difference between disbelieving the affiant and requiring him to indicate some basis for his allegations. Obviously any reliance upon factual allegations necessarily entails some degree of reliance upon the credibility of the source. See, E.g., Johnson v. United States, 333 U.S. 10, 13, 68 S.Ct. 367, 368, 92 L.Ed. 436, 439 (1947). Nor does it indicate that each factual allegation which the affiant puts forth must be independently documented, or that each and every fact which contributed to his conclusions be spelled out in the complaint. Compare United States v. Ventresca, 380 U.S. 102, 85 S.Ct. 741, 13 L.Ed.2d 684 (1965). It simply requires that enough information be presented to the Commissioner to enable him to make the judgment that the charges are not capricious and are sufficiently supported to justify bringing into play the further steps of the criminal process.' Jaben v. United States, 381 U.S. 214, 224--225, 85 S.Ct. 1365, 1371, 14 L.Ed.2d 345, 353 (1965).

These constitutional requirements of the Fourth Amendment are applicable to the states through the Fourteenth Amendment. Ker v. State of California, 374 U.S. 23, 83 S.Ct. 1623, 10 L.Ed.2d 726 (1963). See People v. Moreno, Colo., 491 P.2d 575 (1971); State v. Saidel, 159 Conn. 96, 267 A.2d 449 (1970); State v. Licari, 153 Conn. 127, 214 A.2d 900 (1965).

Michigan has not hesitated to acknowledge the binding effect of these requirements in cases involving search warrants. People v. Dogans, 26 Mich.App. 411, 418--419, 182 N.W.2d 585 (1970); People v. Zoder, 15 Mich.App. 118, 122--123, 166 N.W.2d 289 (1968). And when an arrest warrant is sought upon a complaint expressly made on information and belief, we have always required the magistrate to make further inquiry in order to satisfy himself that the probable cause required to support a warrant exists. People v. Heffron, 53 Mich. 527, 19 N.W. 170 (1884). See Brown v. Hadwin, 182 Mich. 491, 497, 148 N.W. 693 (1914); Curnow v. Kessler, 110 Mich. 10, 13, 67 N.W. 982 (1896).

Unfortunately, there has developed in Michigan a curious exception to that rule. Where a complaint purports to be made on personal knowledge, then, no matter how conclusory the statements and absurd the presumption of personal knowledge, these minimum requirements are no longer enforced. At least, '* * * it is incompetent for a defendant upon arraignment, to impeach the complaint by showing a lack of knowledge by the complaining witness.' People v. Mosley, 338 Mich. 559, 564, 61 N.W.2d 785, 788 (1953). See People v. Davis, 343 Mich. 348, 354, 355, 72 N.W.2d 269 (1955).

This long-standing rule has apparently never been challenged in light of Giordenello, supra, and cases interpreting it. It was acknowledged in People v. Roney, 7 Mich.App. 678, 680--681, 153 N.W.2d 175 (1967) (where the distinction between the two types of complaints and the resulting disparate lines of cases are analyzed), without reference to any possible conflict with United States Supreme Court cases interpreting the Fourth Amendment.

The rule allows judicial activity which fails to comport with constitutional requirements. It encourages misleading complaints by police officers and ridiculous presumptions by magistrates. The Roney case provides a good example: there, the warrant was issued on the complaint of a Detroit policewoman who alleged the commission of the crime of statutory rape on her own knowledge and not on information and belief. We consider it extremely unlikely that the rape occurred in the presence of the policewoman. It is equally unlikely that the armed robbery perpetrated in the instant case occurred in the presence of the police detective who made the complaint purportedly on personal knowledge. Certainly it must have appeared unlikely to the magistrate was issued the warrant. Yet, under the Michigan case law, the magistrate was allowed to make the unreasonable assumption that the officer was swearing on personal knowledge. He was thus relieved of the duty, required by constitution and statute, ² to make further inquiry in order to satisfy himself as to the existence of probable cause based on his own conclusions, not the complainant's.

This state has never countenanced such exaltation of form over substance in the case of search warrants. In People v. Zoder, Supra, this Court reversed a conviction because evidence which had been seized under a defective search warrant was erroneously admitted at trial. The defect was an affidavit which.

'did not state whether the affiant spoke with personal knowledge of the matters contained therein * * * Martha Cox's affidavit did not state the sources of her belief and failed to provide a basis for an independent finding of probable cause by the magistrate.' People v. Zoder, Supra, 15 Mich.App. pp. 120--123, 166 N.W.2d p. 291.

The authority relied on by the Zoder Court for the principle that the source of an affiant's knowledge must be identified and the magistrate's decision must be independent was Giordenello v. United States, Supra, which involved a defective Arrest warrant. Surely if these principles as articulated by the United States Supreme Court in an arrest warrant case apply in Michigan to search warrants, there is no rational basis for denying their application to arrest warrants.

It is axiomatic that the constitutional requirements as to probable cause which apply to search warrants apply as well to arrest warrants. Giordenello v. United States, Supra; Aguilar v. Texas, 378 U.S. 108, 112--113, 84 S.Ct. 1509, 1512--1513, 12 L.Ed.2d 723, 727 (1964); Whiteley v. Warden, Supra. As was noted by the Supreme Court of Errors of Connecticut:

'Indeed, it is obvious that the...