People v. Wolfe

• Decision Date: 10 January 1967
• Docket Number: No. 69,No. 3,69,3
• Citation: 5 Mich.App. 543,147 N.W.2d 447
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Frank S. WOLFE, Defendant-Appellant. Cal
• Court: Court of Appeal of Michigan — District of US

Page 447

147 N.W.2d 447

5 Mich.App. 543

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Frank S. WOLFE, Defendant-Appellant.

Cal. No. 69.

Court of Appeals of Michigan, Division No. 3.

Jan. 10, 1967.

Leave to Appeal Denied March 22, 1967.

Roger H. Nielsen, Battle Creek, for appellant.

Frank J. Kelley, Atty. Gen., Robert A. Derengoski, Sol. Gen., Lansing, John M. Jereck, Pros. Atty., Marshall, for appellee.

Before BURNS, P.J., and FITZGERALD and T. G. KAVANAGH, JJ.

FITZGERALD, Judge.

The function of an appellate court opinion from antiquity to modern times has been to furnish presedent and guidelines to the bench and bar. In recent years, a new dimension has been added in crininal cases. Law enforcement agencies now have a vested interest in the appellate opinion in this day and age of change in the approach to criminal prosecution.

It is with this in mind that we here seek to furnish a guideline not only for prosecutor, defense attorney and judge, but also those charged with the responsibility of the apprehension of lawbreakers.

The facts of this case are relatively simple, and yet they bring into play a broad spectrum of incidents which, however, narrow down into the question of the validity of an arrest without warrant.

This case should be carefully contrasted with recent landmark cases. It was not an arrest for a traffic violation with subsequent search; it did not involve the finding of variant evidence under a search warrant valid for other evidence; it did not involve contraband such as narcotics, policy tickets or concealed weapons.

The sole question we have before us is the latitude of the police in making an arrest, without warrant, based on 'prudent belief' and physical evidence visible to the world, coupled with other probative circumstances such as time of day, recognition of the suspects, and like factors.

The facts are as follows: On September 20, 1963, a citizen named Fred Kendall was driving through the city of Battle Creek at about 4:50 a.m. As he drove along, he observed 2 men attempting to lift a safe into the trunk of an old model car. When he passed the vehicle, he looked in his rear view mirror and noticed it had only one headlight. His suspicions aroused, he stopped at the public telephone booth and called the Battle Creek city police to report the incident he had seen.

His call came into the dispatch office of the Battle Creek police department describing the scene and Lt. Theral W. Smith left to investigate the report. While responding to the call, he saw a vehicle coming toward him with one headlight and, as it passed, he recognized the car and also observed an object sticking out of the trunk.

He turned around to pursue the car and in the light of his headlights observed that the object in the trunk was a safe. He thereupon radioed another Battle Creek police car, advised it of his location, and proceeded to stop the vehicle carrying the safe. Lt. Smith, after requesting the occupants of the car to step outside, recognized them, one being Frank St. Clair Wolfe, the defendant herein, and the other James McDonald, both of whom he placed under arrest. Soon thereafter 2 other officers arrived, at which time Lt. Smith directed them to take Wolfe and McDonald into custody, to search and handcuff them and transport them to the police station. The car was driven to the police station where police officers examined it and removed the safe and other evidence offered in the trial of this case. It was after the return to the police station that the officers learned of a report of a safe being stolen.

The defendant was charged with the crime of breaking and entering in the nightime. Following examination, he was bound over for trial.

Timely objection to the introduction of the evidence seized in the search was made at both the preliminary examination and the circuit court levels, the motions being denied. A further ground was urged in the circuit court for quashing the information, that being that the justice of the peace did not at the conclusion of the examination make a finding that a felony had been committed and that there was probable cause to believe that defendant committed it. This motion was likewise denied, the trial proceeded, and defendant was convicted following a jury trial.

The defendant has appealed, again setting forth the grounds previously urged, i.e. that the search and seizure was unreasonable and illegal and that he was improperly bound over by the justice of the peace.

It is obvious that the prime question before us is whether or not a valid arrest was had in this case and whether, if it was not valid, the evidence procured thereby should have been suppressed. As stated by Justice Stewart in Beck v. State of Ohio (1964), 379 U.S. 89, 85 S.Ct. 223, 13 L.Ed.2d 142:

'When the constitutional validity of an arrest is challenged, it is the function of a court to determine whether the facts available to the officers at the moment of the arrest would 'warrant a man of reasonable caution in the belief' that an offense has been committed.'

Thus, we can only reconstruct the information which was available to Lt. Smith at the time the arrest took place.

Going back over the record, we find that Lt. Smith left the station house in response to a call from a citizen stating that he had seen 2 men lifting a safe into the trunk of a car at a given intersection in the city of Battle Creek and that this car had one headlight. He later encountered this car, stopped it, and placed the occupants thereof under arrest, the search being subsequent thereto.

It is now necessary to go to the record of the preliminary examination to find the explanation of the arrest as made by Lt. Smith:

'Q. Mr. Smith, for what offense did you arrest Mr. Wolfe?

'A. Investigating a breaking and entering.'

It is noted that up to this point no report of a breaking and entering had been made to the Battle Creek police department and that, indeed, Lt. Smith did not learn of a breaking and entering until he returned to the station house with the defendant herein in his custody. The only previous communication to the Battle Creek police department had been from Mr. Kendall reporting the safe-loading scene which to him had looked questionable.

That an arrest without a warrant may be made in Michigan goes without question, and indeed is sanctioned under a variety of circumstances by C.L.1948, § 764.15 (Stat.Ann. § 28.874). Its validity, however, must be tested by the facts.

A succinct summing up of the state of law regarding an officer's power to arrest without a warrant is stated in George, Constitutional Limitations on Evidence in Criminal Cases, Institute of Continuing Legal Education, 1966, p. 12:

'It is important to note that the officer must 'believe' and not merely 'suspect' that the person arrested has committed the felony. Cf. Beck v. (State of) Ohio, 379 U.S. 89 (85 S.Ct. 223) (1964). Often this is a verbal distinction which laymen do not make, but officers should be trained to testify in terms of belief and not of 'suspicion'. Even if there is belief, the trial court must later determine whether the belief was reasonable under the circumstances. Wong Sun v. United States, 371 U.S. 471 (83 S.Ct. 407, 9 L.Ed.2d 441) (1963); Henry v. United States, 361 U.S. 98 (80 S.Ct. 168, 4 L.Ed.2d 134) (1959). If the arrest is viewed as a subterfuge for a search and seizure, it may be viewed as unlawful on that basis alone. Jones v. United States, 357 U.S. 493 (78 S.Ct. 1253, 2 L.Ed.2d 1514) (1958). The standards in the federal cases control so far as the states are concerned, as a result of Mapp v. Ohio (81...