Dixon v. Shiner

163 N.W.2d 481, 12 Mich. App. 573, 1968 Mich. App. LEXIS 1233

• Court: Michigan Court of Appeals
• Decided: July 31, 1968
• Docket: Docket 1,385
• Status: Published

Opinions

Lesinski, C. J.

This suit for false imprisonment or illegal arrest was brought by plaintiff, Sandy Dixon, Jr., against defendants, Ronald Shiner and William Schmidt, who are police officers for the city of Detroit. From a judgment granted in favor of plaintiff by the Wayne county circuit court sitting without a jury, defendants appeal.

The gravamen of the complaint set forth that on June 3, 1962, defendants, while on duty as police officers for the city of Detroit, did arrest and detain plaintiff - without a warrant and without probable cause. The defendants in their answer deny that the arrest was unlawful and affirmatively state that the arrest was lawful and based upon a reasonable belief that the plaintiff had committed a felony; to wit: breaking and entering a dwelling in the nighttime.¹

The pretrial statement signed by the circuit judge gives the parties’ respective versions of the case:

“Plaintiff’s version: Plaintiff contends that while a peaceful pedestrian on E. Jefferson Avenue, on June 3, 1962, the defendants, by exercise of force and threats, did wrongfully place the plaintiff under arrest without a proper warrant or proper authority for said detention.

“Defendants’ version: Defendants contend that the arrest was lawful in that there was probable cause for them to believe that a felony was being or had been committed, and that the plaintiff was involved in same. Defendants further deny that they committed any assault or used any force or violence upon the plaintiff, and, further, contend that their actions with respect to the plaintiff were lawful, and that they were at all times in the good faith of the performance of their duty as police officers.”

The trial disclosed the following events on the night in question.

Officers Donald Shiner and William Schmidt were plainclothes detectives assigned to' the 5th precinct “B & E” car. The purpose of the “B & E” car is to provide extra protection in high crime neighborhoods. Officers assigned to this duty specialize in the detection of such crimes as breaking and entering businesses and dwellings, purse snatchings, robbery armed, and narcotics.

Defendants worked the shift starting from 8 p.m. on June 2 to 4 a.m. on the morning of June 3, 1962. Before going on duty, the officers were instructed to give special attention to the Bali-Hi Motel located on the northeast corner of Jefferson and St. Clair because during the previous week a robbery had been committed there.

At approximately 3:45 on Sunday morning, June 3, 1962, these two officers were patrolling in an easterly direction on Jefferson and observed a man, later identified as Sandy Dixon, for about 5 minutes walking back and forth on the public sidewalk in front of the office of the Bali-Hi Motel. The officers, after deciding to question the man, pulled up next to him and got out of the car. In response to questions by the officers, the man presented identification that he was Sandy Dixon and also a car registration to a 1960 Pontiac car parked nearby on St. Clair street just north of Jefferson avenue. Mr. Dixon was then “patted down” by the officers. In response to further interrogation by the officers, Mr. Dixon stated that he had come to pick up a friend by the name of Dan Smith. Dan Smith’s testimony corroborated plaintiff’s story.

During the course of the interrogation but after Mr. Dixon had been searched or “patted down,” the officers noticed a soldier coming from the motel with some luggage. The soldier did not come out to the sidewalk where the officers and Mr. Dixon were standing-, but instead turned and walked across the lawn and through the shrubbery to the car that Dixon had identified as belonging to him. The soldier then began putting the luggage into the car.

Officer Schmidt thereupon proceeded to walk over to the automobile to question the soldier. When patrolman Schmidt asked the soldier what he was doing, the soldier stated he was putting the luggage in his friend’s car and pointed to Dixon. The soldier, while talking with the officer, dropped a key to the grpuncl wMeh was picked up by officer Schmidt. The key was to room 17 of the Bali-Hi Motel. Officer Schmidt, leaving Dixon and the soldier with his partner, went to the motel to interrogate the night manager. The manager reported that room 17 was registered to two men from Cincinnati, Ohio, neither of whom was Dixon or the soldier. Officer Schmidt then returned to the car to inform Dixon and the soldier that they were under arrest for breaking and entering an apartment. Despite Dixon’s claim that he did not know the soldier, he was handcuffed and taken along with the soldier to the 5th precinct station. It was subsequently determined that the luggage was stolen. Dixon was released from custody on Sunday about 11 a.m. It does not appear that criminal proceedings have been taken against him.

The record discloses that Dixon is a schoolteacher and an ordained minister holding a bachelor’s degree from the University of Detroit and a master’s degree from Michigan State University.

Defendants contend on appeal that the trial court erred in its ruling that plaintiff was technically under arrest when first detained by the officers. The trial court ruled: “When the plaintiff was first detained * * * there was no indication whatsoever that there was a crime being committed, and that this particular plaintiff had any connection with any crime which was being or had been committed. * * * Subsequent events cannot justify a false arrest.”

It is now contended by the defense that plaintiff was not placed under arrest until after certain crucial events had taken place, i. e., the officers’ apprehension of a soldier who had come from the Bali-Hi Motel, while putting luggage in the plaintiff’s car, and the motel manager’s statement that neither Dixon nor the soldier were registrants of the motel. The defense thus argues that prior to the occurrence of these crucial events, plaintiff was under reasonable detention and not under arrest, for the purpose of establishing his identity and reason for being around a motel at 3:45 a.m. The defense admits that the officers did not have probable cause to make an arrest without a warrant when plaintiff was initially detained, but nonetheless contends that such detention does not constitute an arrest and the validity of the detention does not depend on the presence of “probable cause.”

Defendants have called to our attention a number of cases from other jurisdictions holding that police officers may “stop and frisk” persons on the street and reasonably detain them to establish their identity and purpose, notwithstanding the absence of probable cause to make a valid arrest. People v. Entrialgo (1963), 19 App Div 2d 509 (245 NYS2d 850), aff’d (1964), 14 NY2d 733 (250 NYS2d 293, 199 NE2d 384); People v. Rivera (1964), 14 NY2d 441 (201 NE2d 32, 252 NYS2d 458) cert denied (1965) 379 US 978 (85 S Ct 679, 13 L Ed 2d 568); United States v. Vita (CA 2, 1961), 294 F2d 524; People v. Amos (1961), 190 Cal App 2d 384 (11 Cal Rptr 834). See, also, United States v. Thomas (SD NY, 1966), 250 F Supp 771.

The United States Supreme Court recently, in Sibron v. New York (and Peters v. New York) (1968), 392 US 40 (88 S Ct 1889, 20 L Ed 2d 917), and Terry v. Ohio (1968), 392 US 1 (88 S Ct 1868, 20 L Ed 2d 889), sustained the constitutionality of “stop and frisk.” The defendants erroneously urge that the issue of “stop and frisk” is involved in this cause. In the instant case the pleadings, pretrial statement,² and trial all point to one issue: whether the officers had probable cause to arrest plaintiff when he was initially detained by them. Although there was some testimony which would support defendants’ contention, it is patently clear from the brief opening statement of defense counsel, made after plaintiff had rested his case, that “probable cause” was the only material issue before the court:

“May it please the Court, it occurs to me that it is clear at this juncture that the question of material importance in this case is whether or not the arrest on June 3, 1962, was based upon reasonable cause to believe that a felony had been or was being committed and that Mr. Dixon was involved in the commission of that felony. I suggest that without further statement that we likewise will proceed with our witnesses.”

Although the record before us clearly demonstrates that the theory of the defense below was that the initial detention of plaintiff was justified in that probable cause existed to make a valid arrest, a different theory is offered to avoid liability on appeal. The law in this state affords a review of the theory tried below and defendants will not be permitted to argue another theory on appeal to avoid liability. Lash v. Prokop (1951), 331 Mich 390; Brackins v. Olympia, Inc. (1946), 316 Mich 275; Charles Ruppel v. The Adrian Furniture Manufacturing Company (1893), 96 Mich 455.

Although we feel that what has been said heretofore is sufficient to determine this appeal, certain testimony warrants additional comment. Officer Shiner testified that Mr. Dixon was not placed under arrest until “Patrolman William Schmidt returned from the [motel] manager’s office.”

The following excerpt from testimony by officers Shiner and Schmidt elicited on cross-examination by plaintiff’s counsel, conflicts with the above testimony that Mr, Dixon was not placed under arrest until after the occurrence of certain noted crucial events:

Cross-examination of officer Shiner:

“Q. You arrested him when you first stopped him, did you not ?

“A. Yes, we did.

“Q. At that time did you see him commit any crime in your presence?

“A. No, we did not.

“Q, Did you have a warrant for his arrest at that time?

“A. No.

“Q. Your statement is that when you first stopped him he was not committing any crime, nor did you have a warrant for his arrest?

“Q. You didn’t have any• knowledge of any crime at the time you stopped him, first stopped him?

“Q. But he was arrested at that point on the sidewalk, on the street ?

“A. Yes.

“Q. He was not committing a crime, you didn’t have a warrant or knowledge of any crime?

“Q. Did you ever search Mr. Dixon?

“A. Yes, we did.” (Emphasis supplied.)

Cross-examination of officer - Schmidt:

“Q. Mr. Schmidt, when did you first stop Mr. Dixon?

* # *

“A. In front of the office, beside the office of the Bali-Hi Motel.

“Q. Did you identify yourself as a police officer?

“A. Yes, sir.

“Q. He ioas then and there under arrest?

“A. Technically he was.

“Q. Was lie committing a crime in your presence at the time you arrested him?

“Q. Did you have a warrant for his arrest?

“A. I did not.

“Q. Did you have knowledge that he was wanted for any crime at that time ?

•“A. -Himself?

“Q. Yes?

“A. No, I did not.

“Q.< But you proceeded to arrest Mm anyway, is that right?

■ “Q. Notwithstanding the fact that he wasn’t committing a misdemeanor or a felony, you arrested him anyway?

“A. You mean like detaining someone?

. “Q. Did you arrest him or didn’t you?

“A. Yes, as soon as he stopped.

“Q. At that time you had no knowledge of any crime, as a matter of fact?

“A. That’s right.” (Emphasis supplied.)

People v. Gonzales (1959), 356 Mich 247, 253, citing from 4 Am Jur, Arrest, § 2, defines “arrest” as follows:

“ 'An arrest is the taking, seizing, or detaining of the person of another, either hy touching or putting hands on him, or by any act which indicates an intention to take him into custody and subjects the person arrested to the actual control and will of the person making the arrest. The act relied upon as constituting an arrest must have been performed with the intent to effect an arrest and must have been so understood by the party arrested.’ ”

Applying this definition to the instant case, the court could properly find that when the police officers stopped, detained, interrogated and searched Mr. Dixon, the latter had been effectively placed under arrest.

Such a view was expressed by the United States Supreme Court in Henry v. United States (1959), 361 US 98 (80 S Ct 168, 4 L Ed 2d 134). In this case federal officers had received information of an undisclosed nature implicating defendant in a theft from an interstate shipment of whiskey. The day after this theft the officers observed the defendant and another leave a tavern and drive to an alley in a residential area where certain cartons were put in the car. Defendants drove back to the tavern and later returned to the same place loading additional cartons in the car. When the car drove away, the agents followed and waved it to stop. The officers got out of their car and searched the car, seizing certain cartons therein which were subsequently determined to contain stolen radios. In respect to when the arrest took place, Justice Douglas, speaking for the Court, stated (361 US 103, 80 S Ct 171, 4 L Ed 2d 139):

“[T]he arrest took place when the federal agents stopped the car. That is our view on the facts of this particular case. When the officers interrupted the two men and restricted their liberty of movement, the arrest, for purposes of this case, was complete. It is, therefore, necessary to determine whether at or before that time they had reasonable cause to believe that a crime had been committed. The fact that afterwards contraband was discovered is not enough. An arrest is not justified by what the subsequent search discloses.”

The determination of when the arrest occurred is for the trier of fact and “depeuds upon an evaluation of the conflicting testimony of those who were there that night.” Rios v. United States (1960), 364 US 253, 262 (80 S Ct 1431, 1437; 4 L Ed 2d 1688, 1694).

This record shows ample evidence to support a finding by the trial judge that Dixon had been “arrested” when he was detained, interrogated and “patted down” by the police officers, notwithstanding the fact that the officers did not tell him he was under arrest until later. Such a finding not being clearly erroneous will be left undisturbed by this Court. UCR 1963, 517.1.

An arrest for a felony without a warrant is not justified unless probable cause therefor existed at the time of the arrest. People v. Harper (1962), 365 Mich 494; certiorari denied 371 US 930 (83 S Ct 302, 9 L Ed 2d 237). As conceded on appeal by defendants and revealed by this record, there was no probable cause to arrest Dixon when he was detained, interrogated and searched by the police officers.

If, therefore, the arrest occurred prior to the time the soldier began loading luggage into Dixon’s car, as determined by the trial court, then nothing occurring thereafter could make the arrest lawful. Henry v. United States, supra; Rios v. United States, supra.

Judgment affirmed. Costs to appellee.

Holbrook, J., concurred with Lesinski, C. J.

1 CL 1948, § 750.110 (Stat Ana 1962 Bev § 28.305), amended after this incident by PA 1964. No 133.

2 See summary of pleadings and defendants’ version of the ease on pages 575, 576, ante.