United States v. Kenneth Eugene Evans , 574 F.2d 352 ( 1978 )

PECK, Circuit Judge.

On April 28, 1976, defendant-appellant Evans was found guilty by a jury of possession of a firearm after conviction for a felony. On appeal, he argues that a gun •found in his apartment, along with a statement made by him to police officers, were illegally obtained and should have been excluded from the evidence.

The Detroit Police Department received a complaint from Evans on July 4, 1975, at about 6:15 p.m., that his taxicab and his wallet had been stolen earlier that afternoon. At about 5 p.m., a passenger in the same cab had reported that he had been robbed at gunpoint by the driver. Their suspicions aroused by the delay between the time Evans claimed his cab was stolen and the time he contacted the police, the investigating officers fed Evans’ name and description into the computerized Law Enforcement Information Network (LEIN). The police officers discovered that Evans had a criminal record and that three outstanding traffic court warrants were entered against him; one for ignoring a stop sign, one for driving through private property, and one for allowing a passenger to ride in the front seat.

The police officers went to Evans’ apartment to question him concerning his report of the theft. After some routine questions, they informed him that they were going to have to arrest him on the traffic warrants. Evans became extremely nervous and agitated at this point, and eventually had to be handcuffed and led to the police car.

On the way back to the station, one of the officers was talking to Evans, and (in his own words) “encouraging or — I should say, just letting him know I was wondering why — what did he have to hide; ‘Why are you so worried about the whole thing, why didn’t you want us to come into your room?’ ” Transcript at 46. After further questioning about whether Evans had a “ghost in the closet,” Evans admitted to the officer that he had a gun in his room. According to the officer’s testimony, he immediately told Evans to say no more, and for the first time advised him of his rights.

Knowing that Evans had a criminal record, and that possession of a firearm by a felon was a federal offense, the officers contacted the federal authorities. A search warrant was obtained for the apartment, and a revolver was discovered under the bed pillows.

Evans argues that the traffic warrants pursuant to which he was arrested were unconstitutionally issued, and that his arrest was therefore illegal. His incriminating remarks to the police were tainted by that illegal arrest, and therefore both his statements and the revolver are “fruit of the poisonous tree” and should not have been admitted into evidence against him. We agree, and hold that his conviction must be vacated and remanded.

At the evidentiary hearing on the motion to suppress, Mr. Trupiano, Supervisor of the Court Clerical Services of the traffic court which issued these warrants, testified as to the procedures followed in the issuance of arrest warrants. At the end of each day, all the tickets issued to persons who have failed to appear are gathered together and delivered to a typist who prepares a list of the ticket numbers. It is unclear how many of these “no-shows” there might be in any one day, but apparently there would normally be several hundred. The tickets are then sent directly to the warrant department for issuance of a warrant.

The list of ticket numbers is presented to the judge along with a signature form. The top portion of the form reads: “I have examined the attached list of cases and find that none of the defendants named therein have appeared on their court date. A warrant is, therefore, requested on all the attached cases.” A blank follows for the clerk’s signature. There next appears a printed form of an order for a warrant, “it appearing that the offenses have been committed and there is just cause to suspect the respective persons therein accused to have committed these offenses.” The warrant is issued “in each of the said foregoing cases based upon said complaint.” [Emphasis supplied.] This portion of the form is signed by the judge and placed in the court’s journal.

Evans argues that there was never a determination that probable cause existed to believe he committed the offenses described in the warrants, and that the warrants therefore were issued unconstitutionally. The constitutional standard for judging the validity of arrest warrants was set out in Giordenello v. United States, 357 U.S. 480, 78 S.Ct. 1245, 2 L.Ed.2d 1503 (1958):

[T]he inferences from the facts which lead to the complaint [must] “be drawn by a neutral and detached magistrate instead of being judged by the officer engaged in the often competitive enterprise of ferreting out crime.” The purpose of the complaint, then, is to enable the appropriate magistrate, here a Commissioner, to determine whether the “probable cause” required to support a warrant exists. The Commissioner must judge for himself the persuasiveness of the facts relied on by a complaining officer to show probable cause. He should not accept without question the complainant’s mere conclusion that the person whose arrest is sought has committed a crime.

Id., at 486, 78 S.Ct. at 1250 (citations omitted). Here warrants were issued for Evans’ arrest based on the complaint of a police officer. It is clear that no determination of probable cause to believe Evans committed the offenses described in the traffic tickets was ever made by the judge who issued the warrants; in fact he never saw the tickets, but merely a list of numbers. Nor is there any indication that his clerk examined the tickets (which are sworn to by the policeman who issued them and thus would be sufficient to support a warrant) to make sure that the actions described constituted a crime.

The Government argues that these warrants were not based on the violations contained in the complaint, but on the failure to appear in court, and that the judge had probable cause to believe that Evans had not appeared, based on his clerk’s affidavit. It is true that normally, when an accused person or a subpoenaed witness fails to appear in court, the judge will issue a bench warrant ordering that person arrested and brought before the court. Such warrants are clearly valid and based on probable cause and our holding today does not affect them in the least. However, every indication in the record is that these warrants issued for Evans’ arrest were not bench warrants based on his failure to appear, but arrest warrants, based on the complaint described in the ticket. The statute authorizing the warrants states:

If after the service of an appearance ticket and the filing of a complaint for the offense designated therein the defendant does not appear in the designated local criminal court at the time the appearance ticket is returnable, the court may issue a summons or warrant based upon the complaint filed. (Emphasis supplied.)

Mich.Comp. Laws Ann. § 764.9e, Mich.Stat. Ann. § 28.868(5). The form signed by the judge ordering the issuance of warrants states that they are to be “based upon said complaint.” The warrants themselves state that Evans was to be arrested for “the offense therein indicated,” which is the traffic offense.^**

The Government next contends that traffic judges are justified in assuming that each ticket adequately states a complaint and is regular and consistent in form. It also argues that a holding that the judges must make a determination of probable cause would result in their merely “flipping through the tickets” and glancing at the offense described. The language quoted above from Giordenello disposes of the first contention. The official issuing a warrant must judge for himself or herself the persuasiveness of the facts; otherwise there would be little point in interposing a “neutral and detached magistrate” between a citizen and an arresting officer. As for the second point, to the extent that the Government is suggesting that the judges and magistrates will shirk their duty to make a reasoned determination of probable cause before ordering interference with a person’s liberty, we reject the suggestion. Furthermore, if a “glance” at the ticket is sufficient to convince the judge that the complaining officer has described activity which constitutes a crime, so be it — the requirements of the Fourth Amendment are fully satisfied. We also note that there is no necessity that the judge personally examine the tickets; it is clear that this task may be delegated to a clerk. Shadwick v. City of Tampa, 407 U.S. 345, 92 S.Ct. 2119, 32 L.Ed.2d 783 (1972).

The Government does not press the argument that despite the illegal arrest, Evans’ incriminating remarks were “an act of free will unaffected by the initial illegality” of the arrest, and thus admissible under the standards set out in Brown v. Illinois, 422 U.S. 590, 95 S.Ct. 2254, 45 L.Ed.2d 416 (1975). Since the burden rests on the prosecution to make such a showing, we need not decide whether the fact that this was merely a “technical” violation of appellant’s rights, an arrest apparently made in complete good faith based on warrants only later determined to be illegal, offsets the fact that Evans’ incriminating remarks were made soon after his arrest, before he was informed of his rights, and without any intervening events to break the chain of coercion created by his arrest. See Wong Sun v. United States, 371 U.S. 471, 491, 83 S.Ct. 407, 9 L.Ed.2d 441 (1963).

The appellant’s conviction is vacated and this case is remanded to the district court for further proceedings consistent with this opinion.

** The dissent argues that the judge who issued these warrants possessed the power to issue bench warrants based on nonappearance, but we do not question that. Nor do we doubt the validity and desirability of the citation system Michigan uses in traffic and local misdemeanor cases. However, the question is not what the judge could do, but what, in legal effect, he did do. We conclude that the judge did not exercise his power to issue bench warrants; he exercised his power to issue arrest warrants. Michigan law requires that all warrants contain the substance of the complaint and set forth and describe the alleged offense fully and correctly. People v. Belcher, 58 Mich. 325, 25 N.W. 303 (1885); In re Reno, 321 Mich. 497, 32 N.W.2d 723 (1948). Thus, assuming arguendo that the judge here intended to issue bench warrants for nonappearance (in spite of the fact that both the warrant order and the warrants themselves state that they are based on the complaints), the warrants would still be invalid because they do not state the grounds upon which they were issued.