People v. Rowe

Decision Date05 February 1980
Docket NumberDocket No. 78-1022
Citation95 Mich.App. 204,289 N.W.2d 915
PartiesPEOPLE of the State of Michigan, Plaintiff-Appellee, v. Todd ROWE, Defendant-Appellant. 95 Mich.App. 204, 289 N.W.2d 915
CourtCourt of Appeal of Michigan — District of US

[95 MICHAPP 205] Joseph C. Legatz, Grand Haven, for defendant-appellant.

Frank J. Kelley, Atty. Gen., Robert A. Derengoski, Sol. Gen., Wesley J. Nykamp, Pros. Atty., for plaintiff-appellee.

Before BRONSON, P. J., and ALLEN and MAHER, JJ.

MAHER, Judge.

The defendant appeals as of right from a jury conviction for the crime of resisting arrest, contrary to M.C.L. § 750.479; M.S.A. § 28.747. The defendant was sentenced to a term of 90 days in the Ottawa County Jail, ordered to pay [95 MICHAPP 206] $300 in court costs, and given 18 months probation.

On April 12, 1977, the 58th District Court, a district of the first class consisting of the County of Ottawa (M.C.L. § 600.8128; M.S.A. § 27A.8128) issued a warrant for defendant's arrest on a charge of receiving and concealing stolen property, contrary to M.C.L. § 750.535; M.S.A. § 28.803.

Two Holland police officers went to defendant's residence in Holland Township, outside of the City of Holland, to execute the warrant. Defendant's resistance to that arrest led to this conviction.

Defendant contends on appeal that the officers had no authority to arrest him outside of the city and that he was entitled to a jury instruction to that effect. In addition, defendant contends that he is entitled to be discharged because the officers, acting without authority, had only the arrest power of a private citizen and no statutory grounds for a citizen's arrest existed. M.C.L. § 764.16; M.S.A. § 28.875.

In arguing that the officers had no authority to arrest him outside of the territorial limits of the city, defendant relies on the common-law rule. See 5 Am.Jur.2d, Arrest, § 18, p. 709; 6A C.J.S. Arrest § 53b, p. 125; 1 Wharton's Criminal Evidence, § 59, p. 92. However, the common-law rule has been abrogated by statute in Michigan.

Arrest warrants may be executed in any part of the State. M.C.L. § 767.31; M.S.A. § 28.971. 1 In issuing an arrest warrant for a felony the magistrate acts as a judicial officer for the one court of justice (Const.1963, art. 6, § 1).

"The office of justice of the peace is a part of the [95 MICHAPP 207] judicial system of this state, and in the exercise of the important functions of this office the persons filling it cannot be said to be performing duties local in character, but must rather be said to be performing duties in behalf of the entire state." People v. DeMeaux, 194 Mich. 18, 23, 160 N.W. 634, 636 (1916).

The magistrate's authority to issue warrants is equivalent to the authority of a circuit judge and extends county-wide. M.C.L. § 600.8317; M.S.A. § 27A.8317, M.C.L. § 764.1; M.S.A. § 28.860. Accordingly, the magistrate is authorized to direct the warrant to all law enforcement officers in the county.

M.C.L. § 766.3; M.S.A. § 28.921 provides:

"If it appears from such examination that any criminal offense not cognizable by a justice of the peace has been committed, the magistrate shall issue a warrant directed to the sheriff, chief of police, constable or any peace officer of the county, reciting the substance of the accusation and commanding him forthwith to take the person accused of having committed the offense and bring him before the appropriate court to be dealt with according to law, and in the same warrant may require the officer to summon such witnesses as are named therein." (Emphasis added.)

Similarly, M.C.L. § 767.31; M.S.A. § 28.971 directs that "every (arrest) warrant shall be directed to the sheriff, constable, police officer or peace officer of the county in which the indictment shall be found * * * ". 2

In the present case the warrant was directed in accordance with those statutes to "any sheriff, deputy sheriff, court officer, state police officer, or police officer". As a consequence the Holland police officers, to whom the arrest warrant was directed, had statutory authority to execute the [95 MICHAPP 208] warrant anywhere in the county. In addition, those officers, and any other peace officer to whom the warrant was directed, would have been authorized to execute the warrant outside of Ottawa County. In accordance with the legislative scheme that there are no territorial limits in the state on arrest warrants (M.C.L. § 767.31; M.S.A. § 28.971), M.C.L. § 764.2; M.S.A. § 28.861 contemplates that an officer to whom a warrant is directed will be able to execute it anywhere in the state with the same authority as in his own county:

"If any person against whom a warrant shall be issued for an alleged offense committed within any county, shall, either before or after the issuing of such warrant, escape from or be out of the county, the sheriff or other officer to whom such warrant may be directed, may pursue and apprehend the party charged, in any county of this state, and for that purpose may command aid and may exercise the same authority as in his county." (Emphasis added.)

Specific provision has been made for state-wide execution of arrest warrants by police officers of the City of Detroit (M.C.L. § 726.21; M.S.A. § 27.3571); by police officers of fourth class cities (M.C.L. § 87.16; M.S.A. § 5.1673), and by sheriffs and deputies (M.C.L. § 600.582; M.S.A. § 27A.582).

In addition, pursuant to the statutory scheme, both the arresting officer and the prisoner are guaranteed safe passage across the state and both are privileged from arrest on civil process while they return to the jurisdiction of the court issuing the warrant. M.C.L. §§ 801.119, 801.120; M.S.A. §§ 28.1768, 28.1769.

Pursuant to the statutes cited, when a warrant is directed to a law enforcement officer, the warrant itself provides the authority needed to execute[95 MICHAPP 209] it. In Drennan v. People, 10 Mich. 169, 182 (1862), Justice Campbell wrote:

"Two things are necessary to justify an arrest on a warrant; first, a warrant good on its face, and, second an authority in the person who undertakes to act under it.

"If a warrant is upon its face void, then no officer can justify under it; although, as a general rule, no officer is bound to look behind a regular warrant, coming from a proper jurisdiction. It is laid down without dissent, that no person is bound to submit * * * to an arrest made by an unauthorized person under a good warrant * * *. In Rex v. Weir, 1 B. & C., 288, Bayley, J., says, 'It is of great consequence that magistrates should be careful to direct their warrants in such a manner that the parties to be affected by them may know that the persons bearing the warrants are authorized to execute them.' " (Partial emphasis added.)

Accord, Wheaton v. Beecher, 49 Mich. 348, 351, 13 N.W. 769 (1882); Ortman v. Greenman, 4 Mich. 290, 292 (1856). Even more than authority to execute it, a warrant is a command to the officer to execute the warrant promptly under pain of fine or criminal prosecution. People v. Durfee, 62 Mich. 487, 491, 29 N.W. 109 (1886); Dunn v. Gilman, 34 Mich. 255, 257 (1876), M.C.L. § 750.191; M.S.A. § 28.388, M.C.L. § 750.123; M.S.A. § 28.318, M.C.L. § 600.587; M.S.A. § 27A.587.

In this case, the circuit court justified the arrest outside of the city on the basis of M.C.L. § 117.34; M.S.A. § 5.2114, which provides:

"When any person has committed or is suspected of having committed any crime or misdemeanor within a city, or has escaped from any city prison, the police officers of the city shall have the same right to pursue, arrest and detain such person without the city limits as the sheriff of the county."

[95 MICHAPP 210] In our opinion, that statute is not addressed to the question involved in this case, namely, a peace officer's authority to execute an arrest warrant outside the territorial limits of his jurisdiction. Rather, it is addressed to the different but related question of a peace officer's authority to act in the traditional role of law enforcement officer outside the territorial limits of his jurisdiction. We perceive a difference in the two functions.

In executing an arrest warrant directed to him, the officer functions, in a sense, as a court officer for service of process and acts in a ministerial capacity. Dunn v. Gilman, 34 Mich. 256 (1876); Ortman v. Greenman, 4 Mich. 290 (1856). See also, 70 Am.Jur.2d, Sheriffs, Police, and Constables, § 21, p. 146. In executing the warrant, the officer acts ministerially 3 in the sense that he is not required to make a determination of probable cause; that determination has already been made for him by the magistrate, performing a judicial function. Birmingham v. District Judge, 76 Mich.App. 33, 255 N.W.2d 760 (1977). By contrast, a peace officer acting in the traditional role of law enforcement officer acts in a discretionary capacity in numerous matters, including the decision to arrest without a warrant. Under the common law, a peace officer's authority to act in that traditional role was generally limited to the territorial limits of the officer's jurisdiction. One exception to that rule even at common law was the exception for [95 MICHAPP 211] what is commonly known as "hot pursuit". 4 Although the officer could not exercise law enforcement functions outside of his...

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