People v. Dixon

392 Mich. 691 (1974) 222 N.W.2d 749

PEOPLE
v.
DIXON

No. 12 April Term 1974, Docket No. 54,284.

Supreme Court of Michigan.

Decided October 30, 1974.

Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, Peter E. Deegan, Prosecuting Attorney, Peter R. George, Chief Appellate Attorney, and Robert H. Cleland, Assistant Prosecuting Attorney, for the people.

State Appellate Defender Office (by Norris J. Thomas, Jr.), for defendant on appeal.

LEVIN, J.

Herman Lester Dixon appeals his conviction of unlawful possession of a narcotic drug.^[1]

Dixon was arrested for a traffic offense and searched at the scene; nothing was found. Heroin was discovered during a search at the police station. Contending that both his arrest and the search were illegal, Dixon moved before and at trial to suppress the heroin.

The Court of Appeals, in holding that Dixon was validly arrested, "adopt[ed] the following rules":

"A police officer may arrest without a warrant for a misdemeanor if the misdemeanor was actually committed in the officer's presence or if, from personal observations, the officer has reason to believe that a misdemeanor was committed in his presence. A police officer has reason to believe that a misdemeanor has been or is being committed in his presence if the circumstances observed by him would lead a reasonable person to conclude that he was witnessing the commission of a misdemeanor by the person arrested."^[2]

We agree with the Court of Appeals that Dixon's arrest was valid, not because a police officer may arrest for the commission of a misdemeanor on probable cause — he may not — but because the misdemeanor was committed in the arresting officer's "presence."^[3] We, nevertheless, reverse Dixon's conviction because the search at the police station was in derogation of his statutory right to bail.

I

Two State Police officers stopped the automobile Dixon was driving at about 3 a.m. because they thought the vehicle was making excessive noise and suspected a faulty muffler.^[4] When Dixon produced his driver's license one of the officers observed a second license in his wallet which aroused his suspicion and caused him to radio headquarters. He was advised that Dixon's license had been suspended. Dixon was then arrested for operating a motor vehicle with a suspended license.^[5] A contemporaneous frisk revealed no weapon and he was transported to the county jail.

A statute authorizes a peace officer to make a warrantless arrest for "any felony or misdemeanor committed in his presence." It also authorizes warrantless arrests for a felony on probable cause and in certain other circumstances, but there is no authorization for a warrantless arrest for a misdemeanor whether on probable cause or on any other basis unless it was "committed in his presence."^[6]

Dixon argues that the arrest was invalid because the officer "did not learn from his own senses" that Dixon was committing a misdemeanor. Knowledge of a necessary element of the offense was not gained from the officer's "personal observation" but from a hearsay radio report.

In holding that the police could arrest on probable cause ("such information as would lead a reasonable person to conclude"), the Court of Appeals noted several jurisdictions in which "a police officer may properly arrest without a warrant if he has probable cause to believe from personal observations that a misdemeanor has been committed in his presence."^[7] All but one of these cases were civil actions against the arresting police officer. In the lone criminal case cited by the Court of Appeals, State v DelVecchio, 149 Conn 567; 182 A2d 402 (1962), the statement was dictum; the Court held that the arrest was not lawful.

At common law a police officer was authorized to arrest without a warrant for a misdemeanor only when it constituted a breach of the peace and the breach occurred in his presence.^[8] Most states, including Michigan, have abandoned the breach of the peace limitation. Some have also authorized warrantless arrests for misdemeanors on probable cause. But a large number of states, like Michigan, have retained the presence requirement.^[9]

Whatever may have been its historical origins, we perceive the principal present day importance of the presence requirement to be that a police officer may not utilize information received from third persons as a basis for a warrantless misdemeanor arrest. When the basis of the officer's belief that the defendant has committed a misdemeanor is information imparted to him by, say, victims, witnesses or informers, he must present the evidence to a magistrate and seek an arrest warrant. He may not act on his own appraisal of the reasonableness of the information.

Another police officer is not a third person within that policy. Courts in other jurisdictions have developed a "police team" qualification of the presence requirement, permitting officers who are working together on a case to combine their collective perceptions so that if the composite otherwise satisfies the presence requirement that requirement is deemed satisfied although the arresting officer does not himself witness all the elements of the offense.^[10]

In this case the arresting officer saw Dixon driving a vehicle. Another officer examined the official records which showed that his license was suspended. Their combined information satisfies, in our opinion, the purpose and policy of the presence requirement.

We recognize that the official record is in a sense hearsay. It would not, however, be in accord with reason to deny police officers the power to act on information of this kind officially compiled in a public record.

The only person who might know of his own knowledge whether Dixon's license was suspended was Dixon himself. He alone was likely to know whether an order of suspension had been entered and remained in force and effect. But even his perceptions may have been mistaken as, not being a lawyer and probably not having examined all the pertinent records, he could not be entirely sure of his official status.

In point of fact, about the only way to establish whether a person's operator's license is suspended at a given moment is to conduct a judicial hearing at which all persons who have been involved in proceedings to suspend and to reinstate could testify and an adjudication could be made; but even that would be subject to appeal.

We hold that in deciding whether to arrest for the misdemeanor of driving without an operator's license, a police officer may properly rely on information obtained by radio from another police officer who is examining an official record, that such information becomes part of the arresting officer's knowledge which he can consider in deciding whether a law violation has occurred in his presence.

We reiterate that this qualification should not be read as justifying warrantless misdemeanor arrests on other "reasonable" or "dependable" information. We especially emphasize that police officers may not arrest on information obtained from persons who are not police officers, e.g., victims, witnesses and informers or on the basis of information obtained from a police officer who is relying on information obtained from a person who is not a police officer.

II

Upon arrival at the jail, Dixon was ordered into a small room and there directed by one of the officers and the jail turnkey to remove his sweater. The turnkey's investigation of the sweater's pocket revealed several small packets wrapped in tissue paper. The packets were opened revealing a white substance which was thought to be and later analysis proved to be heroin. Dixon was then arrested for unlawful possession of a narcotic drug. Additional heroin was discovered during an intensive "strip search" of Dixon incidental to the narcotic violation arrest.

Dixon had been searched for weapons before he arrived at the jail. The search at the jail cannot be defended as an inventory search unless the authorities could justifiably incarcerate him. Dixon had a statutory right to immediate bail, a right rooted in Const 1963, art 1, §§ 15 and 16, as well as the Eighth Amendment. The search at the jail was in derogation of that statutory right. The evidence seized in the search should have been suppressed and, therefore, Dixon's conviction is reversed.

A statute requires that whenever a person is arrested without a warrant for a misdemeanor (now, since April 1, 1971, more particularly defined: "punishable by imprisonment for not more than 90 days or a fine of not more than $100.00, or both"^[11] — precisely the penalty for the traffic offense for which Dixon was arrested) the arresting officer shall take him without unnecessary delay before the most convenient magistrate to answer the complaint.^[12]

The prosecutor argues that these provisions for immediate bail are inapplicable because Dixon was arrested in the middle of the night and no magistrate was then available. It was, therefore, necessary to incarcerate him at least until morning.

The statute provides, however, that if no magistrate is available, the arrested person may^[13] recognize to the direct supervisor of the arresting officer or department (and now, the sheriff as well or his deputy in charge of the county jail) by leaving a sum of money not to exceed $100 with exceptions not here pertinent.

The district court in the district where the jail was located had established by general order a standard bail of $35 for the release of an offender charged with driving without a license.^[14]

The prosecutor, citing an opinion of the Attorney General,^[15] contends that this statute authorizing misdemeanants to post bond does not apply to traffic arrests.

Section 7, before its amendment effective April 1, 1971, provided that the act "shall not affect sections 727 and 728"^[16] of the Motor Vehicle Code, and, after amendment, provides that it "shall not affect section 728" of the Motor Vehicle Code.^[17]

The "non-affected" sections establish alternative, less burdensome arrest and release procedures for traffic offenders. Section 728 provides for release of the arrested person upon issuance of a written citation. Section 727 authorizes an officer who has arrested a person for reckless driving or for not having a valid operator's or chauffeur's license in his immediate possession, under certain circumstances to release such person from custody with a citation to appear in court. The penalties for the other offenses covered by § 727 take them out of the operation of the interim bail statute.

There is no inconsistency between the interim bail statute and §§ 727 and 728 of the Motor Vehicle Code. The interim bail statute complements those sections by providing a means by which minor traffic offenders arrested without a warrant and not released on citation, may post interim bail if no magistrate is available.

The prosecutor points out that the interim bail statute does not direct the arresting officer to inform the arrested person of his right to post bail. We are persuaded, however, that the sense of the statute and its purpose of avoiding unnecessary incarceration of minor offenders can only be served by imposing on the arresting officer (and now, the sheriff as well) the duty to inform the person about to be jailed of the statutory protection of which he otherwise would probably be ignorant.

In United States v Mills, 153 US App DC 156, 165; 472 F2d 1231, 1240 (1972), the Court of Appeals for the District of Columbia Circuit held that evidence obtained during a booking inventory procedure at the precinct station, following a weapons search at the time of arrest for a traffic offense, should be suppressed because of the failure to apprise the defendant of his right to be released upon posting $50 "collateral":

"When a person is charged with a collateral-type petty offense, under which he rightfully has the opportunity to post collateral and avoid further detention, and there is no probable cause to believe he committed a more serious crime, the police may not engage in an inventory search of the offender, or an equivalent direction that he empty his pockets, and seek to support it on the ground of holding him in further confinement, unless at a minimum he was timely notified of his opportunity to post collateral (and thus avoid further detention) and refused or was unable to do so."

Similarly, see People v Mercurio, 10 Cal App 3d 426, 431; 88 Cal Rptr 750, 753 (1970),^[18] where a pedestrian arrested for crossing an intersection against a "Don't Walk" sign was taken to the station house and searched yielding a vial of marijuana. In rejecting the claim that the police were justified in incarcerating Mercurio and subjecting him to an inventory search because of the unavailability of a magistrate at the odd hour of the arrest (on a Sunday night) and in holding that the marijuana evidence should be suppressed, the Court declared:

"It is not reasonable to suppose the Legislature would subject an arrestee to incarceration and search because he is apprehended at nighttime on a weekend, without providing him an alternative method of making bail to avoid the indignity of jailing."

While the district court's general order applies only to persons arrested "on Saturdays, Sundays and holidays," and Dixon was arrested on a weekday night, not on a Saturday, Sunday or holiday night, the statutory right to recognize to the officer (and now, the jailer as well) applies at all times that a magistrate is not available.

When Dixon was arrested he had $86.36. There is every reason to believe that had the officers informed him of his statutory right to be released upon posting bail and had they set bail at the amount determined by the district court as reasonable for this offense, $35, Dixon would have paid that sum. Under the circumstance that the district court had established that amount for Saturday, Sunday and holiday arrests, the officers could not properly have demanded more upon a weeknight arrest.

Any evidence gained in derogation of this statutory right is to be suppressed; no other remedy is as likely to assure its full enforcement and the protection of the citizenry at large from unwarranted and unnecessary inconvenience, embarrassment and risk attendant incarceration for a minor traffic offense.

III

Discovery of the heroin is not validated by the opinions of the United States Supreme Court in United States v Robinson, 414 U.S. 218; 94 S. Ct. 467; 38 L. Ed. 2d 427 (1973), and Gustafson v Florida, 414 U.S. 260; 94 S. Ct. 488; 38 L. Ed. 2d 456 (1973).

The Court predicated the right to search there as an incident of the arrest and the need of the officer to protect himself.^[19]

Dixon had already been searched for weapons before even entering the police car. The station house procedures were not intended nor could they be justified as a further search for either weapons or possible fruits of the crime.^[20]

"The inventory search is not a search incident to arrest, but is rather a search incident to incarceration. The purposes of the inventory search do not stem from the objectives of protecting the arresting officer and discovering evidence of the crime for which the suspect was arrested. No inventory search need be conducted unless the suspect is to be incarcerated. * * *

"The inventory search should be viewed as incident to incarceration, and not as incident to arrest. One search cannot in fact be both a search incident to arrest and an inventory search. This is not a mere game of semantics." Comment: The Inventory Search of an Offender Arrested for a Minor Traffic Violation: Its Scope and Constitutional Requirements, 53 B U L Rev 858, 864 (1973).

Reversed.

T.M. KAVANAGH, C.J., and T.G. KAVANAGH, WILLIAMS, and SWAINSON, JJ., concurred with LEVIN, J.

LEVIN, J. (separate opinion).

In People v Moore, 391 Mich. 426, 435; 216 NW2d 770 (1974), we ruled that the proviso to Const 1963, art 1, § 11 ("unreasonable searches and seizures") "prohibiting the exclusion from evidence of ``any narcotic drug, firearm, bomb, explosive or any other dangerous weapon, seized by a peace officer outside the curtilage of any dwelling house', precludes a construction of the Michigan search and seizure clause imposing a higher standard of reasonableness for searches and seizures of items named in the proviso than the United States Supreme Court has held applicable under the Fourth Amendment."

This proviso for drugs and weapons seized outside the curtilage of a dwelling house applies only to claims arising under the "provisions of this section," i.e., § 11 of art 1 of the Constitution of 1963. The proviso does not preclude the suppression on other grounds of drugs and weapons seized outside the curtilage of a dwelling house.

In this case, Dixon is entitled to the suppression of the seized evidence because of the violation of his statutory right, applicable to arrests for minor traffic offenses, to immediate bail.

T.G. KAVANAGH, J., concurred with LEVIN, J.

M.S. COLEMAN, J. (dissent).

The Court has reversed defendant's conviction for possession of heroin "because the search at the police station was in derogation of his statutory right to bail" prior to his appearance before a magistrate or the probate court. I dissent because the pertinent statute in effect at the time of the arrest did not provide such an immediate right.

At 3 a.m. on Friday, March 19, 1971, two Michigan State Police officers stopped the automobile which defendant was driving because the car was making excessive noise. When defendant produced his driver's license, one of the officers noted that defendant had a second license. This prompted a radio check on defendant which indicated that his license had been suspended. Defendant was arrested.

At the county jail defendant was ordered to remove his sweater. In it was found several packets containing a substance thought to be heroin. Defendant was then arrested for unlawful possession of a narcotic drug. A subsequent strip search disclosed more heroin.

Defendant was initially arrested pursuant to provisions of Chapter VI of the Michigan Vehicle Code, MCLA 257.727; MSA 9.2427 which reads in part:

"Whenever any person is arrested without a warrant for any violation of this act or of a provision of any ordinance substantially corresponding to any provision of this act, punishable as a misdemeanor, the arrested person shall, without unreasonable delay, be taken before a magistrate or probate court within the county in which the offense charged is alleged to have been committed and who has jurisdiction of such offense and is nearest or most accessible with reference to the place where said arrest is made, in any of the following cases:

* * *

"(4) When a person arrested does not have in his immediate possession a valid operator's or chauffeur's license. If the arresting officer otherwise satisfactorily determines the identity of such person and the practicability of subsequent apprehension in the event of failure to voluntarily appear before a designated magistrate or probate court as directed, the officer may release such person from custody with instructions to appear in court, given in writing as prescribed by section 728." (Emphasis added.)

The Court has cited MCLA 780.581; MSA 28.872(1)^[1] as affording an individual the right to immediate bail when arrested without a warrant for a misdemeanor. However, at the time of this arrest on March 19, 1971, MCLA 780.587; MSA 28.872(7) provided that the cited section "shall not affect" the provisions of MCLA 257.727 quoted above. (Emphasis added.)

Under the law as it was at the time of this arrest, a defendant did not have a statutory right to immediate bail in the absence of a magistrate or probate judge at 3 a.m. He did have a right to be brought before a magistrate or probate judge "without unreasonable delay". In the interim, bail was available only at the discretion of the arresting officer. There is no legal reason to reverse the decision in this case.

The decision of the Court of Appeals should be affirmed.

J.W. FITZGERALD, J., concurred with M.S. COLEMAN, J.

NOTES

[1] MCLA 335.153, MSA 18.1123.

[2] People v Dixon, 45 Mich. App. 64, 69; 205 NW2d 852 (1973).

[3] MCLA 764.15; MSA 28.874.

[4] MCLA 257.707; MSA 9.2407.

[5] MCLA 257.904; MSA 9.2604.

[6] MCLA 764.15; MSA 28.874.

[7] People v Dixon, supra, pp 68-69.

[8] 6 CJS, Arrest, § 6, p 589. See Robinson v State, 4 Md App 515, 525; 243 A2d 879, 886 (1968).

[9] See Comment, The Presence Requirement and the "Police-Team" Rule in Arrest for Misdemeanors, 26 Wash & Lee L Rev 119, 123, fn 21 (1969).

[10] See Comment, op cit, fn 9.

[11] MCLA 780.581; MSA 28.872(1).

[12] At the time of Dixon's arrest, March 19, 1971, the then effective § 1 of the interim bail statute provided:

"When any person is arrested without a warrant for any offense, violation of a city, village or township ordinance cognizable by a justice of the peace or a municipal judge, the officer making the arrest shall take, without unnecessary delay, the person arrested before the most convenient magistrate of the county in which the offense was committed to answer to the complaint made against him.

"If no magistrate is available or immediate trial cannot be had, the person so arrested may recognize to the direct supervisor of the arresting officer or department for his appearance by leaving with him a sum of money not to exceed $100.00. If, in the opinion of the arresting officer or department, the arrested person is under the influence of liquor or narcotic drug, is wanted by police authorities to answer to another charge, or it is otherwise unsafe to release him, the arrested person shall be held until he is in a proper condition to be released, or until the next session of court." 1961 PA 44, § 1.

Effective April 1, 1971, § 1 of the statute was amended:

"(1) When any person is arrested without a warrant for a misdemeanor, violation of a city, village or township ordinance punishable by imprisonment for not more than 90 days or by a fine of not more than $100.00, or both, the officer making the arrest shall take, without unnecessary delay, the person arrested before the most convenient magistrate of the county in which the offense was committed to answer to the complaint made against him.

"(2) If no magistrate is available or immediate trial cannot be had, the person so arrested may recognize to the direct supervisor of the arresting officer or department or the sheriff or his deputy in charge of the county jail if the person so arrested is lodged in the county jail for his appearance by leaving with him:

"(a) A sum of money not to exceed $100.00, if the offense is punishable by imprisonment for not more than 90 days or by a fine, or both except as provided in subdivision (b).

"(b) A sum of money not to exceed $200.00, if the offense is a violation of sections 619, 625 or 626 of Act No. 300 of the Public Acts of 1949, as amended, being sections 257.619, 257.625 and 257.626 of the Compiled Laws of 1948, or an ordinance corresponding thereto.

"(3) If, in the opinion of the arresting officer or department, the arrested person is under the influence of liquor or narcotic drug, is wanted by police authorities to answer to another charge, or it is otherwise unsafe to release him, the arrested person shall be held until he is in a proper condition to be released, or until the next session of court." 1970 PA 157, § 1.

[13] Justice COLEMAN is correct that the arresting officer has the option under subparagraph (4) of § 727 of the Motor Vehicle Code (MCLA 257.727; MSA 9.2427) of either

(i) taking before a magistrate or probate court a person arrested because he does not have in his immediate possession a valid operator's or chauffeur's license, or

(ii) if the arresting officer otherwise satisfactorily determines the identity of such person and the practicability of subsequent apprehension in the event of failure to voluntarily appear before a designated magistrate or probate court, releasing such person from custody ("the officer may release such person from custody"; emphasis supplied) with instructions to appear in court, given in writing as prescribed by § 728, i.e., by issuing a citation to appear (a ticket).

In this case the officer chose not to release Dixon on issuance of a citation but, rather, took him to jail. It then became his duty, both under § 727 of the Motor Vehicle Code and § 1 of the interim bail statute, to take him before a magistrate.

Under the interim bail statute, if no magistrate is available, "the person so arrested may recognize to the direct supervisor of the arresting officer * * *." (Emphasis supplied.) MCLA 780.581; MSA 28.872(1). Manifestly, just as the officer has discretion under § 727 of the Motor Vehicle Code either to issue a citation or to take the offender into custody, under the interim bail statute it is the offender who enjoys the discretion whether to recognize (post bail) to the direct supervisor of the arresting officer.

[14] "Pursuant to District Court Rule 2004, this Court having considered the establishment of cash bail for persons arrested on weekends for misdemeanors and traffic violations, it is hereby

"ORDERED that the St. Clair County Sheriff Department or the several police departments, including the Michigan State Police, shall accept cash bail for persons arrested on Saturdays, Sundays and holidays when this court is not in session for the appearance of the defendant at the opening of court on its next regular business day as follows:

"For all misdemeanors                      $35.00
"For reckless driving                      $50.00
"For operating an automobile
while under the influence of
intoxicating liquor                      $100.00"

[15] OAG 1961-1962, No 3,624, p 305 (March 5, 1962).

[16] MCLA 257.727, 257.728; MSA 9.2427, 9.2428.

[17] As originally enacted, the catchline heading to § 7 was "Traffic offenses excepted." 1961 PA 44, § 7. This catchline heading was retained when § 7 was amended in 1970 (1970 PA 157, § 7) but in the Compiled Laws of 1970 the catchline heading was changed to "Traffic offenses not affected." 1970 CL 780.587.

It is provided, however, by general statute (MCLA 8.4b; MSA 2.215) that the catchline heading of a section "shall in no way be deemed to be a part of the section or the statute, or be used to construe the section more broadly or narrowly than the text of the section would indicate, but shall be deemed to be inserted for purposes of convenience to persons using publications of the statute."

[18] Other decisions suppressing evidence obtained in derogation of an offender's statutory right to bail following arrest for commission of a minor offense include People v Marin County Superior Court, 14 Cal App 3d 935; 92 Cal Rptr 545 (1971); People v Overlee, 174 Colo 202; 483 P2d 222 (1971); State v Gwinn, 12 Or App 444; 506 P2d 187 (1973), S Ct rev den (1973); Agar v Los Angeles County Superior Court, 21 Cal App 3d 24; 98 Cal Rptr 148 (1971); Carpio v Santa Barbara County Superior Court, 19 Cal App 3d 790; 97 Cal Rptr 186 (1971); People v Los Angeles County Superior Court, 7 Cal 3d 186; 101 Cal Rptr 837; 496 P2d 1205 (1972).

Several of these cases invoke a slightly different analysis to exclude the evidence gained in derogation of the right to immediate bail. They consider the seized evidence as the fruit of an "unreasonable" search and, therefore, inadmissible under the Fourth Amendment and analogous state constitutional provisions. As indicated in the text, our decision is not premised on the Fourth Amendment.

[19] The crux of the Rehnquist opinions is that if the arresting officer appears to have had a plausible reason for conducting a search for weapons, the Court will not closely scrutinize the officer's assertion that he conducted a search for that purpose to determine whether such a search was actually necessary.

[20] The absence of probable cause for the station house search subsequent to the arrest distinguishes this case from recently decided United States v Edwards, 415 U.S. 800, 805; 94 S. Ct. 1234; 39 L. Ed. 2d 771 (1974) in which the Court upheld the warrantless taking of clothing from Edwards while he was incarcerated approximately ten hours after his arrest:

"[C]ontemporaneously with or shortly after the time Edwards went to his cell, the police [by further investigation at the scene] had probable cause to believe that the articles of clothing he wore were themselves material evidence of the crime for which he had been arrested."

[1] At the time of Dixon's arrest, March 19, 1971, the then effective § 1 of the interim bail statute provided:

"When any person is arrested without a warrant for any offense, violation of a city, village or township ordinance cognizable by a justice of the peace or a municipal judge, the officer making the arrest shall take, without unnecessary delay, the person arrested before the most convenient magistrate of the county in which the offense was committed to answer to the complaint made against him.

"If no magistrate is available or immediate trial cannot be had, the person so arrested may recognize to the direct supervisor of the arresting officer or department for his appearance by leaving with him a sum of money not to exceed $100.00. If, in the opinion of the arresting officer or department, the arrested person is under the influence of liquor or narcotic drug, is wanted by police authorities to answer to another charge, or it is otherwise unsafe to release him, the arrested person shall be held until he is in a proper condition to be released, or until the next session of court." 1961 PA 44, § 1.