People v. Ubbes

• Decision Date: 02 February 1965
• Docket Number: No. 75,75
• Parties: The PEOPLE of the State of Michigan, Plaintiff and Appellee, v. Frank UBBES, Respondent and Appellant.
• Court: Michigan Supreme Court

Page 669

132 N.W.2d 669

374 Mich. 571

The PEOPLE of the State of Michigan, Plaintiff and Appellee, v. Frank UBBES, Respondent and Appellant.

No. 75.

Supreme Court of Michigan.

Feb. 2, 1965.

Frank J. Kelley, Atty. Gen., Robert A. Derengoski, Sol. Gen., John L. Schwendener, Pros. Atty., of Kalamazoo County, for the People.

Hoffman, McDonald & Hoffman, Allegan, for respondent and appellant.

Before the Entire Bench.

O'HARA, Justice.

Frank Ubbes was arrested for, charged with and convicted of larceny over $100, under somewhat unusual circumstances. Since the conviction took place on September 18, 1961, the defendant had no appeal therefrom as a matter of right. Upon application for leave to appeal, it was granted, but limited to 3 questions raised in the application:

(1) Was defendant's confession obtained while defendant was held in custody without being taken before a magistrate admissible?

(2) Was defendant's confession involunary as a matter of fact?

(3) Was there an illegal search and seizure?

The circumstances of his arrest, confinement and arraignment are as follows: In the afternoon of October 26, 1960, Jack White, a state police officer, while off duty was hunting pheasant in St. Joseph county. At the conclusion of the hunt his bird dog took unauthorized leave and went off upon land adjoining that on which his master had been hunting. The trooper climbed over a fence separating the 2 parcels. At a point about a quarter of a mile from the home of defendant, upon whose land the officer had entered, 'at the tip of a marsh,' Officer White retrieved his Brittany spaniel. The spaniel flushed a pheasant, and near this point the trooper observed a 4-wheel machine of some sort partially concealed by a tarpaulin and a piece of plywood. With understandable curiosity he pulled back the tarpaulin. The machine was revealed to be an arc welder not indigenous to the growth and cover of that area which he described as 'pine seedings.' He made a record of the serial number thereof and carried his errant spaniel back to his car. Upon checking out the serial number the arc welder was shown as reported stolen. Thereafter, at about 6 p. m. he changed to his uniform, got a wrecker and drove back to defendant's farm. He knocked at Mr. Ubbes' door and inquired whether he, Ubbes, had an arc welder on his property. The reply was negative. The officer then informed defendant that there was one on his land and that it had been reported stolen. The officer then said, according to his testimony: 'Would you care to go down and take a look at it?' He testified that Ubbes replied 'All right.' This, Ubbes later denied. The State trooper who had been joined by the chief of police, together with defendant, went back to the point where the welder was hidden. Some further conversation as to how the machine came to be there took place. The State policeman then placed defendant 'temporarily' under arrest for possessing stolen property. We are moved to comment for the guidance of law enforcement officials that we do not apprehend what constitutes a 'temporary' arrest. An arrest is an arrest. It contemplates apprehension and detention. In the broad sense, all arrests are of course 'temporary' pending further legal disposition of the issue of detention. We merely caution that no less a legal basis exists for a 'temporary' arrest than an officer's arrest in its generally accepted sense.

The officers having taken defendant into custody, drove to the village of Schoolcraft to the police chief's office attached to his residence. Thereupon the trooper and the sheriff began to question him. The questioning had been in progress about 10 minutes when Trooper White was advised by telephone that his assigned partner, Trooper Panosso, was looking for him. White left defendant in the police chief's custody and went by car to locate his partner. He found him in some 20 minutes and returned to the police office. The 3 officers then took defendant to the State police post at White Pigeon. En route they were delayed for a brief period to answer a radio call. They arrived at the State police post about 9:40 p. m., some 3 hours and 10 minutes after defendant's arrest. Defendant was then photographed, fingerprinted and questioned further. This procedure took an hour or so. At 10:45 they took defendant to the Centreville jail where he was booked and lodged in a cell at 11 p. m. He was not questioned further that night. It should be noted that in the interim between 6 p. m. and 11 p. m. the officers by the demands of location of jail facilities, the police chief's office, and the State police post, had driven some 55 to 60 miles. They had during the period fingerprinted and photographed defendant, 'booked' him and placed him in a cell. Meanwhile, they had answered a radio call and encountered a brief delay while the arresting officer located his officer-partner. After defendant had been confined in the jail, the State police considered it advisable to assign a detective to the case. The officer chosen was a Detective Muth, who was a specially trained interrogator. He came to the jail at about a quarter of five in the morning. He awakened defendant and questioned him vigorously, applying special techniques, some of which, if accurately described by defendant, offend against defendant's constitutional guaranties. They consisted of requiring defendant to sit with his knees locked inside those of the questioning officer while he forced defendant physically to keep his head in a fixed position and his eyes and attention on the inquisitor. After the foregoing questioning, according to the officers, defendant who had up to then, steadfastly maintained his innocence, indicated that if he could talk with his wife he might change his story. The detective and the other officers went to Ubbes' home where they allege Mrs. Ubbes asked them to wait until her children left on the school bus. While waiting, the officers--and this issue is controverted--with or without permission, searched the premises and found other incriminating evidence of theft, in the nature of tools and equipment. When Mrs. Ubbes arrived at the jail at about 10:30 a. m. on the 27th, the morning following his arrest, it is claimed she said to her husband, 'Frank, they found everything.' Thereafter, with his wife present, defendant signed a statement admitting the theft of the arc welder.

Diligent defense counsel, both after the preliminary examination and in advance of trial, by proper motion, raised all the obvious Constitutional issues: illegal search and seizure, illegal arrest and illegal confinement, and by motion sought to suppress the admission of the arc welder and defendant's alleged confession.

The trial judge ordered a special record made in the absence of the jury, at which both the officers and defendant and his wife gave their separate versions of the factual antecedents of the defendant confessing. On the basis of that record, he held that issues of fact were involved and submitted the question of the voluntariness of the confession to the jury, and denied the motion to suppress the admission of the arc welder in evidence. As before noted, the jury convicted.

While we granted a limited review of this case on application for leave to appeal, the advent of the decision of the United States Supreme Court in Jackson v. Denno, 378 U.S. 368, 84 S.Ct. 1774, 12 L.Ed.2d 908 mandates our expansion of the scope of review. Under the rule we adopted after Jackson, supra, (see our decision on rehearing in People v. Walker, Mich., 132 N.W.2d 87, we perforce must remand here, at least for a separate determination of the issue of voluntariness. We will include rulings on issues which would be likely to arise in the event of a new trial.

As to the first assignment of error, we hold:

(1) Defendant's detention and confinement in jail from 6 p. m., Cotober 26, to 10:35 a. m., October 27, at which time he made a statement admitting his guilt to theft, did not under the circumstances here shown render the statement, i. e., confession, inadmissible as a matter of law, as being in jail from 6 p. m., October 26, to to take him before a magistrate within that period.

The lapse of 16 1/2 hours per se is not conclusive. Time of detention alone, without arraignment, is not the test. If for the same 16 1/2 hours defendant had been held without appearance before a magistrate and he had been 'sweated,' i. e., questioned unremittingly for the purpose of extracting a confession, we would not hesitate to strike down the practice and withhold from jury consideration his allegd confession. Here the totality of circumstance indicates bona fide questioning to determine the immediate issue of release, or complaint, and complaint for what offense. We believe this is the meaning of the rule announced in People v. Hamilton, 359 Mich. 410, 102 N.W.2d 738. In Hamilton's concluding page, Mr. Justice Black summed up the circumstance, at p. 419, 102 N.W.2d at p. 743, the composite of which rendered that defendant's confession inadmissible:

'[A] feeling of 'strong distaste' generates from the protracted detention in violation of law of this youthful--and ill if not terrified--subject of another country; one whose comprehension of English words and of American processes of justice--including the consequences of such processes--must have been substantially nil, much as if he were shown as being of low or uneducated mentality; meanwhile denying access of counsel to him, all for the record-evident purpose of extracting a confession of guilt of murder in the first degree.'

Police officers, it must be understood, operate in a world of reality not under ideally conceived circumstances in which, when arrest is made, all interest in the total area of the officers' responsibility immediately focuses undeviatingly upon the status of the particular apprehended and detained person. The officers here, working in a sparsely...