People v. Hamoud

112 Mich. App. 348 (1981) 315 N.W.2d 866

PEOPLE
v.
HAMOUD.

Docket No. 46066.

Michigan Court of Appeals.

Decided November 18, 1981.

Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, William L. Cahalan, Prosecuting Attorney, Edward Reilly Wilson, Principal Attorney, Appeals, and A. George Best, II, Assistant Prosecuting Attorney, for the people.

Sheila N. Robertson, Assistant State Appellate Defender, for defendant on appeal.

Before: D.F. WALSH, P.J., and D.C. RILEY and R.D. KUHN,^[*] JJ.

PER CURIAM.

On June 17, 1978, the owner of a machine shop in Dearborn, Michigan, awakened while sleeping in his establishment, confronted an intruder in the act of burglarizing the premises. At that time the burglar put his hands up and said, "God bless you, man. Don't shoot. I'm stealing. I'm desperate." The man then fled. Police were summoned and a window was found to be broken and tools were discovered to be missing. The owner of the shop described the burglar as being a white male, about 5 feet 10 inches tall, weighing 150-160 pounds with a bush-type "afro" haircut, a scraggly looking beard and a particular gap in his teeth.

From this description, police prepared a photographic display of more than 10 individuals, including defendant, for the victim. The photographic display took place one or two days after the offense. No identification was made by the victim, in part because defendant's photo in the photo array was one that had been made in 1972.

Within the same time frame, while investigating another burglary which had taken place within two blocks of this crime, the officer in charge of this case noticed a man remarkably like the one described to him by the victim in this case in the Dearborn Police Department offices. Intrigued by the close match-up in physical characteristics with the description given him by the victim in this case, the officer told others present that the defendant should be arrested for "investigation" of breaking and entering. On June 20, 1978, defendant was arrested and, while in custody, made two statements to the police. A corporeal line-up was held on June 21, 1978, at which the complainant identified the defendant. Thereafter, an arrest warrant charging the defendant with breaking and entering was obtained.

A bench trial was held and defendant was convicted of being guilty of breaking and entering but mentally ill. He was sentenced to serve from 3 to 10 years imprisonment. He appeals by right.

Defendant raises several issues on appeal, two of which we find deserving of comment.

First, defendant argues that his arrest for "investigation" on the ground that he was "suspected" of breaking and entering was unlawful. If so, the second statement that defendant made to police while in custody was not admissible at trial. Brown v Illinois, 422 U.S. 590; 95 S. Ct. 2254; 45 L. Ed. 2d 416 (1975), Wong Sun v United States, 371 U.S. 471; 83 S. Ct. 407; 9 L. Ed. 2d 441 (1963).

Probable cause is the single basis for arrest without a warrant and a fundamental requirement for obtaining an arrest warrant. The probable cause requirement has deep and fundamental roots in Anglo-American law and in the fundamental law of this country. US Const, Am IV; Const 1963, art 1, § 11. Constitutional law, Michigan statutes and court decisions narrowly circumscribe the right of the police to detain any citizen for investigative purposes. MCL 764.15; MSA 28.874, Terry v Ohio, 392 U.S. 1, 22; 88 S. Ct. 1868; 20 L. Ed. 2d 889 (1968), Adams v Williams, 407 U.S. 143, 148-149; 92 S. Ct. 1921; 32 L. Ed. 2d 612 (1972), People v Jeffries, 39 Mich. App. 506, 511; 197 NW2d 903 (1972), People v Lillis, 64 Mich. App. 64, 70; 235 NW2d 65 (1975). Thus, while a "reasonable suspicion" that criminal activity has been or is taking place may suffice for a brief stop to investigate or determine identity, probable cause alone is the foundation for a valid arrest. Lillis, supra, 70.

The use of the words "investigation", "suspicion" and "suspect" by the arresting officers is not, nor should it be, the single focus of a court's inquiry into the presence or absence of probable cause. Rather, the court should look to facts which support or detract from the assertion by the prosecution, having the burden of proof, that the arrest was supported by probable cause. Our courts have repeatedly held that probable cause to justify an arrest means facts and circumstances within the officer's knowledge that are sufficient to warrant a prudent person, or one of reasonable caution, in believing in the circumstances shown, that the suspect has committed, is committing or is about to commit an offense. Michigan v DeFillippo, 443 U.S. 31, 37; 99 S. Ct. 2627; 61 L. Ed. 2d 343 (1979). Adams v Williams, supra, 149. Tested by this standard, the police officers here had more than suspicion, despite their use of that term. From the facts before us, we find that probable cause for a valid, though warrantless, arrest existed.

The complainant had given the police a detailed description of the intruder at the time of the break-in, days before the arrest. The description included the fact that the burglar had a particular hair style, particular beard and a pronounced gap in his teeth. Officers investigating another burglary in the same general area, occurring at or near the time of the crime in the instant case, noted that the defendant matched the description when they saw him in Dearborn Police Department offices. Because the police had probable cause for the arrest that they made, the trial court correctly admitted into evidence defendant's second statement, given on the morning of June 21, 1978.^[1]

Further, we find that defendant's trial counsel was not constitutionally ineffective in presenting the insanity defense interposed at trial. Counsel performed "at least as well as a lawyer with ordinary training and skill in the criminal law". People v Garcia, 398 Mich. 250, 264; 247 NW2d 547 (1976).

Defendant's other allegations of error are meritless. People v McLeod, 407 Mich. 632; 288 NW2d 909 (1980), People v Trupiano, 97 Mich. App. 416; 296 NW2d 49 (1980).

Affirmed.

NOTES

[*] Circuit judge, sitting on the Court of Appeals by assignment.

[1] Cf. People v Martin, 94 Mich. App. 649; 290 NW2d 48 (1980), in which defendant was arrested for "investigation of murder". In Martin, "the officers repeatedly acknowledged that the defendant was arrested for investigatory purposes only". Id., 653. As there is "no such crime" as "investigation of murder", the arrest was unlawful. Id. In the present case, it is clear that the defendant was arrested for breaking and entering, a cognizable offense, upon probable cause to believe the defendant committed the crime. The officer's isolated remark was superfluous and inaccurate.