People v. Himmelein

• Decision Date: 27 July 1989
• Docket Number: Docket No. 88918
• Citation: 177 Mich.App. 365,442 N.W.2d 667
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Scott William HIMMELEIN, Defendant-Appellant. 177 Mich.App. 365, 442 N.W.2d 667
• Court: Court of Appeal of Michigan — District of US

Page 667

442 N.W.2d 667

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Scott William HIMMELEIN, Defendant-Appellant.

Docket No. 88918.

177 Mich.App. 365, 442 N.W.2d 667

Court of Appeals of Michigan.

Submitted April 9, 1987.

Decided June 6, 1989.

Released for Publication July 27, 1989.

[177 MICHAPP 367] Frank J. Kelley, Atty. Gen., Louis J. Caruso, Sol. Gen., Fred R. Hunter, III, Pros. Atty., and J. Ronald Kaplansky, Asst. Atty. Gen., for the people.

State Appellate Defender by F. Michael Schuck, for defendant-appellant on appeal.

Before WEAVER, P.J., and HOLBROOK and GILLESPIE, ^* JJ.

HOLBROOK, Judge.

Defendant was tried by a jury and convicted of first-degree criminal sexual conduct, M.C.L. Sec. 750.520b(1)(f); M.S.A. Sec. 28.788(2), (1)(f), unarmed robbery, M.C.L. Sec. 750.530; M.S.A. Sec. 28.798, and the unlawful taking and driving away of a motor vehicle, M.C.L. Sec. 750.413; M.S.A. Sec. 28.645. Defendant was sentenced to concurrent prison terms of twenty to [177 MICHAPP 368] forty years for the first-degree criminal sexual conduct conviction, ten to fifteen years for the unarmed robbery conviction, and three to five years for the unlawful driving conviction. We affirm.

This case arose from an incident on December 19, 1984. The prosecution's evidence at trial showed that a man alleged to be defendant entered the victim's home and engaged the victim in nonconsensual sexual intercourse. At one point during the attack, the man struck the victim with a yardstick. Throughout the incident, the man, who initially concealed his face with a stocking mask, took efforts to avoid letting the victim look at him. Consequently, the victim was unable to identify her attacker, even though she was acquainted with defendant. After the attack, the man took $9 from the victim's purse and ascertained from the victim where her car keys were located. The man then left the scene in her automobile.

During the police investigation, the yardstick was checked for fingerprints. A print taken from the yardstick matched defendant's thumbprint shown on a fingerprint card obtained from the sheriff's department. This was the only evidence linking defendant to the crime.

Defendant now argues that the trial court erred by denying his motion to suppress evidence of the fingerprint card used to identify the thumbprint discovered at the scene of the crime. Defendant's argument is twofold: (1) the evidence should have been suppressed because it was taken in violation of the interim bail statute, MCL Sec. 780.581 et seq.; MSA Sec. 28.872(1) et seq., and (2) the card was taken pursuant to an illegal arrest in violation of defendant's Fourth Amendment rights. See also Const. 1963, art. 1, Sec. 11. Defendant's first argument--that [177 MICHAPP 369] the failure to inform defendant of his right to post interim bail resulted in the unlawful taking of his fingerprints--is not well taken because defendant failed to raise this issue in the trial court. Thus, no record on this question was preserved for appeal. We turn now to the question of whether the arrest which resulted in the securing of the fingerprint card was illegal.

At the evidentiary hearing on the suppression motion, it was established that defendant was arrested by the Allegan City Police Department on December 21, 1984, some two days after the crimes at issue in this appeal were committed. The arrest was made on the charge of driving while under the influence of intoxicating liquor. At that time, a substance similar in appearance to marijuana was seized from defendant and forwarded to the state laboratory for analysis. In accordance with normal operating procedures, no complaint was sworn and no warrant was sought for the charge of possession of marijuana, the issuance of a warrant to be deferred pending the results of the laboratory analysis. For reasons that remain inexplicable, defendant was booked for possession of marijuana and posted bond for the same offense in order to secure his release after the December 21 arrest.

Once the city police received the laboratory analysis report confirming that the substance seized from defendant was marijuana, a warrant was sought through the prosecutor's office for possession of marijuana. The police were aware of defendant's previous arrest on the DUIL charge, but it was believed that a rearrest was consistent with proper procedure. The warrant was delivered to the sheriff's department for execution. Defendant was rearrested on January 18, 1985. The trial court found that the officers participating in the decision to execute the warrant and in the rearrest[177 MICHAPP 370] were unaware that defendant had previously posted bond for possession of marijuana.

The fingerprint card obtained in the course of the rearrest procedure was forwarded to the detective in the sheriff's department investigating the December 19 sexual attack. Defendant was one of some twenty persons suspected of the attack, apparently because he lived near the victim. Defendant's fingerprints, in addition to some ten to fifteen other sets, were submitted to a crime laboratory in an attempt to find a match with the print taken from the yardstick at the scene of the crime.

The trial court denied the motion to suppress, finding that the issuance of the warrant for possession of marijuana was proper and that its subsequent execution was inadvertently done without knowledge of the posting of bond and without any attempt to circumvent defendant's rights. Since we conclude that these findings are not clearly erroneous, see People v. Burrell, 417 Mich. 439, 448-449, 339 N.W.2d 403 (1983), defendant's contention that the rearrest was only a pretext to obtain his fingerprints is without merit.

Defendant contends that the rearrest was illegal under the "collective knowledge" or "fellow officer" rule because the police should be charged with the knowledge that defendant had previously complied with bail requirements, thus vitiating probable cause for the rearrest. In Whiteley v. Warden, Wyoming State Penitentiary, 401 U.S. 560, 91 S.Ct. 1031, 28 L.Ed.2d 306 (1971), it was acknowledged that a police officer is entitled to rely on the representations of his fellow officers in the determination of whether there is probable cause to effect an arrest. However, the collective knowledge rule requires suppression of evidence seized pursuant to the arresting officer's good-faith [177 MICHAPP 371] reliance on false information, which, if known, would render the arrest illegal for lack of probable cause. In other words, the arresting officer can effect no better arrest than those fellow officers having firsthand knowledge of the facts asserted to amount to probable cause. Cf. People v. Bell, 74 Mich.App. 270, 275-277, 253 N.W.2d 726 (1977). Although Whiteley is based on the Fourth Amendment, the same result has been reached by applying a due process analysis. See United States v. Mackey, 387 F.Supp. 1121 (D.Nev.1975).

We do not find the collective knowledge rule to be dispositive. The underlying purpose of that rule is to deter the police from passing on false information, even when the resultant erroneous arrest is made in good faith. We question whether any purpose would be served by an application of a rule that deters the police from effecting arrests without first checking whether a bond had previously been posted for the arrest offense. More importantly, the collective knowledge rule assumes that the arrest itself was illegal due to a state of affairs unknown to the arresting officer. The crucial question, then, is to what extent, if any, the Fourth Amendment operates as a limitation on the power of law enforcement authorities to execute a warrant resulting in the rearrest under the circumstances presented by this case, i.e., was the rearrest in fact illegal? The existence of probable cause for the arrest is not at issue here, given the results of the laboratory analysis on the marijuana seized from defendant.

Generally, the common-law rule is that a warrant gives the police no right to effect additional arrests once it is executed, although this rule is not without exceptions. Carlson v. Landon, 342 U.S. 524, 546-547, 72 S.Ct. 525, 537-538, 96 L.Ed. 547, 564 (1952). This Court has previously held that a [177 MICHAPP 372] rearrest does not per se violate a defendant's due process rights. People v. Dunlap, 82 Mich.App. 171, 176-177, 266 N.W.2d 637 (1978); People v. Watts, 149 Mich.App. 502, 508-511, 386 N.W.2d 565 (1986), lv. den. 425 Mich. 885 (1986). However, we are unaware of any decisions rendered by this Court or our Supreme Court requiring suppression of evidence because of an illegal rearrest.

We think that the limitations of the Fourth Amendment on the discretion of the police to effect a rearrest were correctly set forth in United States v. Holmes, 452 F.2d 249, 260-261 (CA7 1971), cert. den. 407 U.S. 909, 92 S.Ct. 2433, 32 L.Ed.2d 683 (1972). There the defendant Oliver was one of five named in an original indictment for federal narcotics violations. After his arrest, defendant posted bond and was released. Later a superseding indictment was issued, which named additional codefendants. Although no new warrant was issued for the defendant, the defendant was inadvertently rearrested and $6,029 was seized from his person incident to the rearrest. The court held that the cash should have been suppressed:

Not only must there be reason to believe that a prospective arrestee is guilty of a crime; in addition, there must be some purpose to be served by making an arrest. During the entire period between March and October 18, 1967, probable cause to believe that Oliver had committed an offense continued to exist because he was under indictment. But since he had been admitted to bail, no purpose could have been served by continually rearresting him. Although at large, in contemplation of the law he remained in custody. In historic terms, he was the prisoner of his...