People v. Robinson, 66

• Decision Date: 28 December 1955
• Docket Number: No. 66,66
• Parties: The PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Thomas N. ROBINSON, Respondent-Appellant.
• Court: Michigan Supreme Court

Page 41

74 N.W.2d 41

344 Mich. 353

The PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Thomas N. ROBINSON, Respondent-Appellant.

No. 66.

Supreme Court of Michigan.

Dec. 28, 1955.

Victor E. Bucknell, Vicksburg, for respondent and appellant.

Thomas M. Kavanagh, Atty. Gen., Edmund E. Shepherd, Sol. Gen., Lansing, Jacob A. Dalm, Jr., Pros. Atty. in and for Kalamazoo County, J. Douglas Cook, Asst. Pros. Atty., Kalamazoo, for the People.

Before the Entire Bench.

DETHMERS, Justice.

I do not concur in reversal. Questions concerning the validity of policing contracts between municipalities and private corporations engaged in private detective and police detection work, or the lawful powers of employees of the latter to arrest or stop motorists on highways for traffic violations, interesting though they may be, are not before us for determination in this case, in which the record discloses neither the existence nor provisions of such a contract. Here the question is whether prejudicial error occurred on trial, which entitles defendant to reversal of his conviction of speeding. Defendant's statement of reason and ground for appeal raises a single claim of error (no other will be considered--Michigan Court Rule No. 66, § 3; Ludwick v. Hendricks, 335 Mich. 633, 56 N.W.2d 409), namely, that his conviction was based on evidence which should have been suppressed because obtained by illegal means. Defendant predicates this claim on the contention that the evidence, received at trial over his objection, establishing his identity as driver of the speeding automobile, was obtained as the result of his having been stopped unlawfully on the highway by an employee of a private detective agency not authorized by law to arrest or stop persons for the commission of offenses other than felonies, except when summoned to assist a peace officer. C.L.1948, § 764.16, Stat.Ann. § 28.875.

The private detective agency employee who stopped defendant, asked for and examined his operator's license, made out and gave him a violation ticket, and identified him on trial as the driver of the speeding automobile, testified that he was deputized, that he was a special deputy sheriff, and that one of his immediate superiors from whom he took orders was Mr. Buder, the sheriff, this Court taking judicial notice of the fact that at that time Otto K. Buder was the sheriff of Kalamazoo County where the speeding offense occurred. People v. Johr, 22 Mich. 461, and Union School Dist. of City of Saginaw v. Council of City of Saginaw, 232 Mich. 639, 206 N.W. 573. Authority of a deputy sheriff of the county to arrest or stop defendant for a misdemeanor committed in the officer's presence cannot be questioned. C.L.1948, § 764.15, Stat.Ann. § 28.874. The burden did not rest on the people to prove the authority of the person stopping defendant to do so, but, on the contrary, defendant, being the party asserting that the evidence was obtained illegally, had the burden of establishing the lack of such authority and the consequent illegality of the means by which the evidence was obtained. State v. Gardner, 77 Mont. 8, 249 P. 574, 52 A.L.R. 454. This burden he did not sustain. The necessity for his doing so points up one of the reasons for our oft repeated holding that a defendant's objection to evidence on such ground, made for the first time, as here, when offered at trial, comes too late, but ought to have been made in advance of trial by motion to suppress. People v. Heibel, 305 Mich. 710, 9 N.W.2d 826, and cases therein cited. It follows that the evidence complained of must, under the record in this case, be held to have been lawfully obtained and properly received. That disposes of the only claim of error properly before us on appeal.

Affirmed.

CARR, C. J., and BUTZEL, SHARPE, REID and KELLY, JJ., concurred with DETHMERS, J.

BOYLES, Justice.

This is another example of the unsatisfactory manner in which cases are sometimes brought to this Court for review. It is true, as Mr. Justice DETHMERS states, that in the record appellant's statement of reason and ground for appeal raises only one ground for reversal, that the conviction was 'based entirely on testimony which should have been suppressed at the trial * * * because of illegal means used in obtaining the facts of the trial in the complaint * * *.' Also, we have frequently held that no other question would be considered. But appellant's brief brings to us under the heading 'Statement of questions involved' the 3 questions which are discussed by Mr Justice SMITH. And in appellant's 'Statement of facts' in his brief, I find the facts on which those questions are predicated. The people's brief, for the appellee, merely points out briefly 2 'insufficiencies' in appellant's statement of facts, namely, that the 2 employees of Charles Services, Inc., were special deputy sheriffs, and that no arrest, had been made by them, merely that a traffic violation ticket had been given the defendant. Appellee's counterstatement of facts concludes with equal brevity that 'with the exception of the insufficiencies pointed out above, appellee accepts the statement of facts in the brief of appellant.' While these 'facts' should have been shown in the record, they seem to have been agreed upon.

I cannot ignore the provisions in our Michigan Court Rule No. 67 (1945) which require the appellant to begin his brief, on page 1, with a concise "Statement of Questions Involved" in the appeal, and follow it with a 'statement of facts.' Rule 67 further specifically requires that the appellant's statement of questions involved be used as 'topical subheadings' throughout the argument in appellant's brief. And the Rule expressly states that ordinarily no point will be considered which is not set forth or necessarily suggested by that statement of questions involved.

Consequently, I feel that the record and briefs on this appeal, unsatisfactory as they are, justify the consideration given by Mr. Justice SMITH to appellant's statement of questions involved in his brief, under Rule 67. I agree with the conclusions reached by Mr. Justice SMITH in his consideration of the statement of questions involved as found in appellant's brief, but do not agree that we should reverse on that ground.

I am bound by the uncontroverted statement in the testimony of one of the employees of Charles Services, Inc., who stopped the defendant on the highway, 'I am a special deputy sheriff,' and that 'I am paid by the week and my immediate superior is Mr. Spencer and Mr. Buder, the sheriff, from whom we get a lot of orders.'

I agree with Mr. Justice DETHMERS that inasmuch as this 'employee' was a deputy sheriff, the conviction should be affirmed, based on that ground. And finally, the record does show that the defendant violated the speed law.

SMITH, Justice (dissenting).

This is a case in which a portion of the police powers of a municipality have been sold to a private corporation, which, for its gain, thereupon undertakes the enforcement thereof upon the public highways of the State. The defendant makes bold to assert that this is unconstitutional.

There is no dispute about the facts. The defendant, on March 13, 1953, was driving his car in an easterly direction on highway US-12 in Comstock township, Kalamazoo county. He heard a siren behind him and shortly thereafter he was stopped by a police-type car containing 2 men. The defendant did not resist or evade. As one of the 2 men testified: 'I blew the siren before I stopped Mr. Robinson, but did not crowd him to the curb or flash the red light.' The car carrying the 2 occupants was a two-door, cream-colored police-type cruiser. It bore the lettering 'Police' on both sides of the hood.

It carried a combination siren and searchlight. A 'shield' appeared on each door of the car.

Out of this car stepped one Richard W. Allen. He asked to see defendant's license to drive and operate his motor vehicle. After it was handed him, in response to such request, Allen went back to 'Sergeant' Eberly, who made out what is described in the record as 'a violation ticket.' The dress assumed by the so-called Sergeant was in keeping with the assumed status of his vehicle. It was a uniform. On the left front was a 'badga.' On his right sleeve were the words 'Police Traffic' and the insignia of a Sergeant. Also on his right sleeve were the words 'Charles Services, Inc.'

Their whole get-up was a simulation of the accoutrements of our regular police officials. The truth of the matter is that these man were the employees of a private profit corporation, hired by it and paid exclusively by it. Their corporate employer had employed them to serve as 'police officers.' 'I live in Kalamazoo,' testified one. 'I am employed by Charles Services as a police officer, performing duties on traffic and night patrol.' The car in which they were 'patrolling' the public highway was likewise a carefully contrived simulation of a public vehicle, including in its details, a siren permitted under our statutes, C.L.S. 1952, § 257.706, Stat.Ann.1952 Rev. § 9.2406, only to authorized emergency vehicles. This car, in truth, was not a public vehicle but was the private property of the corporation, or its president.

Having thus identified the offending citizen, and having given him a 'violation ticket,' the Sergeant, now as 'Al Eberly,' minus the official title, signed a complaint upon which a warrant was issued out of the municipal justice court of Kalamazoo. This warrant was served and returned by the Michigan state police, following which trial was had and conviction for speeding obtained.

Charles Services, Inc., is a private corporation, organized for profit, and known as a private police investigating agency. The details of its contract with the municipality are not set forth in the record. We do not know whether the corporation purchased the right to patrol the highways, much as a concession is purchased at a...