Docket No. 17201.

57 Mich. App. 666 (1975)

226 N.W.2d 686


Michigan Court of Appeals.

Decided January 27, 1975.

Attorney(s) appearing for the Case

Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, William L. Cahalan, Prosecuting Attorney, Dominick R. Carnovale, Chief, Appellate Division, and Patricia J. Boyle, Assistant Prosecuting Attorney, for the people.

Neal Bush, for defendant on appeal.

Before: DANHOF, P.J., and BRONSON and O'HARA, JJ.


Defendant was charged with first degree murder, MCLA 750.316; MSA 28.548. Prior to trial, defendant moved to suppress both a confession and certain physical evidence obtained from him by the police following his arrest. An evidentiary hearing on these motions was held, and findings were made. An order was entered suppressing the confession and the other physical evidence, and quashing the information. Upon leave granted, the people appeal these findings and order. We affirm in part and remand.

On October 5, 1972, Mary Fotion, a 69-year-old woman who lived alone, was found murdered in the kitchen of her home. She died of multiple stab wounds to the chest and abdomen. A nylon stocking was tied around her neck, and her feet were bound with an electric wire. Blood was found in various rooms of the house. The victim's dress had been pulled above her knees, but there was no evidence of rape.

On October 6, 1972, the defendant, Erskine Langston, was arrested without a warrant by members of the homicide section of the Detroit Police Department. Detective Roffey of the homicide section testified at the evidentiary hearing that he had been assigned to the Fotion murder investigation at about 8 a.m. on the day of the defendant's arrest. Accompanying the file was a note from a superior officer indicating that there existed some similarities between the Fotion murder and the murder of Marion George in 1967.

Sergeant Roffey compared information from the file on the George murder to the information he had concerning the Fotion murder. He testified that he detected a number of common factors: both victims were elderly white women; both lived alone; both were found with something tied around their necks; both were bound and stabbed; both were found with their dresses pulled above their knees; and blood was found in several rooms indicating a struggle in both cases. In addition, in neither case was there any evidence of forced entry or of rape, nor were the homes ransacked, although robbery apparently occurred in both instances. The defendant's father lived within one-half mile of both murder scenes.

The defendant had been arrested and charged with the George murder in 1967. He was committed to the custody of the Department of Mental Health until May 1970 at which time a sanity hearing was held. Reports from various authorities indicated that defendant suffered a "mild mental deficiency"; his intelligence quotient was listed at 60; and he could neither read nor write. He was found competent to stand trial, but the charges against him in connection with the George murder were dismissed on motion of the prosecution because of insufficient evidence.

Detective Roffey investigated further and discovered that defendant Langston had been in the area at approximately the time that Mrs. Fotion was murdered. He decided not to seek a warrant, but rather he and members of the homicide section went to the Langston house to arrest the defendant. They encountered him on the sidewalk near his father's house and they arrested him for the murder of Mrs. Fotion.

Accompanied by his brother, James, defendant was taken to the homicide bureau at about 5 p.m. on Friday, October 6, 1972. His clothing was seized, and subsequent tests revealed that blood found on his jacket was the same type as that of the murder victim. Defendant asked that his father be present, and his father was brought to the police station where he remained until about 8:30 p.m. At that time the interrogation was suspended because the defendant indicated he was tired and that "he would tell us about the crime in the morning".

Questioning continued at 10:30 a.m. Saturday, October 7. Sergeant Roffey again read the defendant his Miranda1 rights. Although he believed that the defendant was "retarded", and he knew that the defendant had been committed to the Wayne County Training School for seven and one-half years, and that he spent over three years in the Wayne County Jail and in the Ionia State Hospital in connection with the George murder, Sergeant Roffey made no attempt to elaborate or explain these rights. He candidly conceded at the hearing that the defendant did not completely comprehend what was happening and that "there were many things that I don't believe he understood". At about 1:30 p.m., defendant made a statement in which he confessed to the murder of Mrs. Fotion. (This statement was tape recorded, but the recording was of such poor quality that it was virtually unintelligible and it was not accepted as evidence at the evidentiary hearing. Hence, the tape recording has not been considered by this Court.)

At approximately 4:15 p.m., Sergeant Roffey read a typed statement based on the confession to the defendant because he knew that the defendant could not read it for himself. In response to the officer's request, the defendant signed the statement. A warrant was issued and arraignment was held on Monday, October 9, 1972. A preliminary examination was held on October 19, 1972 and defendant was bound over for trial on the charge of first-degree murder.

Prior to trial, a combined hearing on the motions to suppress the confession and the jacket was held. The trial court ruled that the prosecution had not satisfied its burden of proving that the statement was voluntary, and that the defendant did not understand his Miranda rights. Also, the Court ruled that the confession was a result of an unlawful arrest and detention designed to obtain evidence from the defendant rather than to bring him promptly before a magistrate. The motion to suppress the blood-stained jacket was also granted; the lower court ruled that it was seized incident to an unlawful arrest made without probable cause. The trial court then ruled that the remaining evidence was unsubstantial and the motion to quash the information was granted.

On appeal the people contend that the trial court erred in granting both motions to suppress. They argued that the arrest was lawful because it was supported by probable cause based on the likenesses between the two murders. According to this argument, the prior arrest of the defendant for the George murder, even though the charges were later dismissed, coupled with the similarities, was sufficient to constitute probable cause to arrest without a warrant.

Authority for a police officer to arrest without a warrant is grounded in statute. In relevant part, MCLA 764.15(c); MSA 28.874(c) provides that "Any peace officer may, without a warrant, arrest a person * * * When a felony in fact has been committed and he has reasonable cause to believe that such person has committed it". Reasonable or probable cause stems from some fact, circumstance, or information which creates an honest belief in the mind of a reasonable and prudent man; that is, there must be good reason to believe that the person arrested has committed a felony. People v Napolitano, 2 Mich.App. 601; 141 N.W.2d 356 (1966); lv den, 378 Mich. 729. The facts upon which the belief is based must exist at the time of the arrest. People v Major, 34 Mich.App. 405; 191 N.W.2d 494 (1971). Information subsequently acquired can have no bearing upon this determination. People v Gwinn, 47 Mich.App. 134; 209 N.W.2d 297 (1973).

Actual facts creating an actual belief can alone give rise to probable cause. People v Panknin, 4 Mich.App. 19; 143 N.W.2d 806 (1966). An officer may not arrest on mere suspicion. People v Griffin, 33 Mich.App. 474; 190 N.W.2d 266 (1971); lv den, 385 Mich. 775. Rather, the officer must entertain an honest, actual belief, based on reasonable grounds, that the arrested individual committed a felony. People v Herrara, 19 Mich.App. 216; 172 N.W.2d 529 (1969). People v Johnnie Mae Jones, 12 Mich.App. 369; 163 N.W.2d 22 (1968). A vague and general belief is not enough. People v Reeves, 23 Mich.App. 183; 178 N.W.2d 115 (1970).

The prosecution has the burden of establishing that an arrest without a warrant is supported by probable cause, and in so doing, the standard is at least as stringent as that applied where an arrest warrant is sought. People v Dogans, 26 Mich.App. 411; 182 N.W.2d 585 (1970). In the present case, the trial court indicated that the prosecution had not met this burden, and had arrested the defendant as a means of obtaining additional evidence. An arrest made as subterfuge for a search and seizure may be considered unlawful on that basis alone. People v Wolfe, 5 Mich.App. 543; 147 N.W.2d 447 (1967); lv den, 379 Mich. 756.

A prior record of criminal conduct can contribute to a finding of probable cause. Hammitt v Straley, 338 Mich. 587; 61 N.W.2d 641 (1953). However, even a prior conviction for a similar crime is not enough, in and of itself, to provide probable cause to arrest without a warrant. Odinetz v Budds, 315 Mich. 512; 24 N.W.2d 193 (1946). The United States Supreme Court in Beck v Ohio, 379 U.S. 89; 85 S.Ct. 223; 13 L Ed 2d 142 (1964), held invalid an arrest without a warrant based on the fact that the defendant had a record of similar criminal activity even when coupled with concededly vague information from an informer and a police photograph of the suspect, because these facts were insufficient to constitute probable cause.

In the present case, the principal reason for the defendant's arrest was a similarity between the Fotion murder and the murder of Mrs. George, for which the defendant was arrested, but never tried. The only other factor of any significance was the defendant's presence within the general area at the approximate time of the crime. The pattern of behavior exhibited by one who engages in criminal activity, referred to here by the people as the modus operandi, may be of significant value in criminal identification. However, research has failed to disclose any Michigan case in which this information alone has been held to provide probable cause for an arrest without a warrant. The trial court concluded that, under the facts of this case, the officer lacked probable cause to arrest the defendant. The ruling of the trial court was discretionary and it will not be reversed unless an abuse of discretion is shown. People v Judge of the 7th Judicial District Court, 55 Mich.App. 471; 222 N.W.2d 778 (1974). People v Carl Smith, 39 Mich.App. 337; 197 N.W.2d 528 (1972) lv den 387 Mich. 797. We cannot say, on the basis of the record in this case, that the ruling was clearly erroneous or that the lower court abused its discretion. Consequently, the lower court did not err in granting the motion to suppress the blood-stained jacket as "fruit of the poison tree" growing out of the illegal arrest. People v Gunn, 48 Mich.App. 772; 211 N.W.2d 84 (1973).

The remaining issue involves the people's contention that the trial court erred by granting the defendant's motion to suppress the confession. The trial court ruled that the people had not met their burden of proving that the confession was voluntary and that the defendant was not made to understand his Miranda rights. The Court also ruled that the confession was the product of an illegal arrest and detention designed to extract evidence from the defendant, and suppressible on that basis as well.

At the conclusion of the evidentiary hearing, the trial court found as fact that the defendant did not understand his rights and that he was being held in order to permit the police to obtain additional information from him. In arriving at these findings, the Court was greatly assisted by the forthright testimony of the investigating officer, Sergeant Roffey. Sergeant Roffey testified that he read the defendant his rights from a prepared form, with no amplification or explanation despite his awareness of defendant's mentally deficient condition. He stated that the defendant did not "grasp the whole situation" and that he did not understand many of the terms used in the notice-of-rights form. When asked why the prosecutor's office was not contacted to initiate formal proceedings against the defendant immediately after his arrest, Sergeant Roffey responded: "I wanted to find out more information regarding the crime". The inquiry at a Walker2 hearing must be confined to the narrow issue of the voluntariness of the defendant's confession without regard to guilt or innocence. People v Douglas, 50 Mich.App. 372; 213 N.W.2d 291 (1973). This restriction will also be observed by a reviewing court which must examine the entire record and make an independent determination of the ultimate issue of voluntariness. People v Robinson, 386 Mich. 551; 194 N.W.2d 709 (1972). In so doing, the lower court's findings will be reversed as clearly erroneous only when the reviewing court is left with a definite and firm conviction that a mistake was committed. People v Douglas, supra, People v Scott, 44 Mich.App. 462; 205 N.W.2d 291 (1973).

Our examination of the record of the hearing in the present case leaves us with no such conviction. On the contrary, the evidence presented, especially the testimony of Sergeant Roffey, demonstrates that the defendant was so lacking in understanding of the circumstances surrounding the interrogation as to vitiate the voluntariness of his confession. This Court has not hesitated to reach a similar conclusion in cases involving persons of subnormal intellectual development who had been institutionalized for long periods of time, even when the police were unwilling to concede that the defendant lacked an understanding of his rights. People v King, 27 Mich.App. 619; 183 N.W.2d 843 (1970). People v Stanis, 41 Mich.App. 565; 200 N.W.2d 473 (1972). The decision of the trial court suppressing the confession is affirmed.

At the conclusion of the original preliminary examination, the defendant was bound over for trial primarily on the strength of fingerprint evidence taken from the victim's change purse, and without consideration of the confession. Whether there still exists sufficient evidence to warrant a trial is not for this Court to decide. The matter is remanded to Recorder's Court for another preliminary examination, unless the people move to dismiss.

Remanded for further proceedings consistent with this opinion.

All concurred.


* Former Supreme Court Justice, sitting on the Court of Appeals by assignment pursuant to Const 1963, art 6, § 23 as amended in 1968.
1. Miranda v Arizona, 384 U.S. 436; 86 S.Ct. 1602; 16 L Ed 2d 694; 10 ALR3d 974 (1966).
2. People v Walker (On Rehearing), 374 Mich. 331; 132 N.W.2d 87 (1965).


1000 Characters Remaining reserves the right to edit or remove comments but is under no obligation to do so, or to explain individual moderation decisions.

User Comments

Listed below are the cases that are cited in this Featured Case. Click the citation to see the full text of the cited case. Citations are also linked in the body of the Featured Case.

Cited Cases

  • No Cases Found

Listed below are those cases in which this Featured Case is cited. Click on the case name to see the full text of the citing case.

Citing Cases