People v. Ward , 226 Mich. 45 ( 1924 )

Defendant was informed against and convicted for possessing and transporting intoxicating liquor in Ottawa county on December 23, 1922. The defense most relied upon was that the arrest was made without probable cause, and a motion to dismiss was made for this reason. Emil Klumpel, the police officer, who made the arrest, testified, on direct-examination, as follows:

"I was in police headquarters and we got a call saying that there was a call from Spring Lake that Harry Ward was coming on the car with a suit case full of whisky. * * * When I met him I says 'Just a minute,' and he turned around, he says, 'What is the matter,' and I says, 'Oh, not much.' I says, 'Harry,' I says, 'If I ask you to open that suit case would you do it?' He says, 'No.' I took him by the shoulder. I says, 'I will arrest you for a violation of the liquor law.' He says, 'Where is your warrant?' I says, 'Don't need any, just come on along,' and I took him along and ran him up to police headquarters."

After they arrived at the police station the suit case was searched by the officer and intoxicating liquor was found therein.

On cross-examination the officer testified:

"I had no warrant for his arrest and no complaint had been made to me or by me before any justice of the peace before that. I had no search warrant to search his grip. * * * I arrested him because I was positive he had the liquor with him. I do not know who telephoned me from Spring Lake and I did not know whether it was a joke or what it was. The party who gave me the information I did not know, and he did not say. He seemed to know what he was talking about. I did not ask who it was. I did not care who it was. If I had received that kind of information in regard to anybody else I would not have acted upon it. We had formed our suspicions of Harry Ward. I arrested him upon the mere idle statement I received over the telephone, together with the suspicion that this constituted the cause for placing him under arrest. I did not see Harry Ward get off the car. I thought he got off the car. I did not see him get off. I don't know whether he got off that street car or not. I am not positive."

The rule of probable cause has been stated, as follows:

"In cases in which an arrest without a warrant may be made by a police officer or private individual, of a person suspected of having committed a felony, the person making the arrest may act upon facts within his own knowledge, or on those communicated to him by a responsible person. He has no authority, however, to arrest on the mere belief that a person has been guilty of an offense, if such belief has no foundation in fact or sufficient circumstances on which to arrest, or if he unreasonably acts at the request of a third person, who himself has a mere suspicion of the guilt of the one who is arrested. To afford a justification there must be not only a real belief and reasonable grounds for it, but where there is an opportunity to make inquiry proper investigation as to the facts should be made, and an officer is not warranted in relying upon circumstances deemed by him suspicious, when the means are at hand of either verifying or dissipating those suspicions without risk, and he neglects to avail himself of those means." 2 R. C. L. p. 450.

And this court has held that mere suspicion alone is not sufficient to constitute probable cause. People v. Burt,51 Mich. 199.

The officer who made the arrest concedes that the only information he had was the anonymous telephone call which he received. The informer did not tell the officer who he was, or what information he had, aside from the facts stated, nor whether his statement was based upon rumor, suspicion or knowledge, and the officer did not ask him who he was, and stated that he did not care who he was. The information which the officer received from this anonymous informer does not appear to be supported by facts sufficiently strong in themselves to warrant a cautious man in believing the accused to be guilty. People v. Johnson, 86 Mich. 175 (13 L.R.A. 163, 24 Am. St. Rep. 116).

In Filer v. Smith, 96 Mich. 347 (35 Am. St. Rep. 603), the court said that the officer should not receive every idle rumor, but should make diligent inquiry touching the truth of the charges as circumstances will permit before he assumes to arrest one upon the information of another.

Had the officer acted as a reasonably cautious man on this occasion, he would have inquired from his informer who he was and what led him to think that the suit case contained intoxicating liquor. By asking a few questions he would have known how much credence to have placed upon the information imparted.

Information of this character coming to an officer has recently received the attention of this court inPeople v. Guertins, 224 Mich. 8. In this case the information received by the officer was anonymous and was similar to that received in the instant case, and the question of probable cause for the arrest was there discussed. The charge of the court was quoted and approved by this court:

"There has been some testimony relative to the officer having received a telephone call from Garden, or from somewhere, to the effect that an automobile of a certain number was coming into Manistique and was bearing liquor. It appears from the testimony of the officer that the person who gave that information did not disclose his name nor the source of his information, and I charge you that, if the officer arrested the respondent solely upon the information which he received over the telephone, the arrest was not lawful, for the reason that an officer has not the right to arrest a person without a warrant and upon information which is given anonymously, without the discloser of the informant and the source of his information. The officer cannot base a reasonable belief upon information which is secured in that way."

In view of this holding as to anonymous communications, and the value to be placed upon them, we must conclude that the officer in the instant case had no such knowledge or information as would constitute probable cause for the arrest of defendant without a warrant.

The judgment of conviction should be set aside and the defendant discharged.

FELLOWS and WIEST, JJ., concurred with BIRD, J.