People v. Mayberry

217 N.W.2d 420, 52 Mich. App. 450, 1974 Mich. App. LEXIS 1052

• Court: Michigan Court of Appeals
• Decided: March 29, 1974
• Docket: Docket 17578
• Status: Published

Opinions

J. H. Gillis, P. J.

A jury convicted defendant of armed robbery. MCLA 750.529; MSA 28.797. A 15-to 30-year sentence was imposed. Defendant appeals as of right.

The sole meritorious issue is whether a conclusory complaint which fails to identify sources of information in violation of state and Federal constitutional rights,¹ divests the court of jurisdiction to try the offense. People v Burrill, 391 Mich 124; 214 NW2d 823 (1974), citing Frisbie v Collins, 342 US 519; 72 S Ct 509; 96 L Ed 541 (1952), concludes that an invalid arrest warrant does not oust jurisdiction. To the extent People v Hill, 44 Mich App 308; 205 NW2d 267 (1973), implies jurisdiction cannot attach, Hill is overruled.

Further, Hill, supra, neglected a step in analysis which Whiteley v Warden, 401 US 560; 91 S Ct 1031; 28 L Ed 2d 306 (1971), and Burrill, supra, properly recognize.² Because an arrest warrant is not required, when an invalid arrest warrant is obtained, the question becomes whether the officer had probable cause to arrest.³ Since the police had probable cause to arrest in the instant case, defendant’s allegation of error is without merit.

Affirmed.

Deneweth, J., concurred.

1 US Const, Ams 4, 14; Const 1963, art 1, § 11.

2 The test is not of recent origin. In addition to United States v Miles, 468 F2d 482 (CA 3, 1972), cited in People v Burrill, 391 Mich 124; 214 NW2d 823 (1974), fn 19, see: Petition of Forcella, 371 F2d 37 (CA 3, 1967); Page v United States, 437 F2d 440 (CA 9, 1970); United States v Evans, 447 F2d 129 (CA 8, 1971); United States ex rel Moore v Russell, 330 F Supp 1074 (ED Pa 1971); United States ex rel Gockley v Myers, 450 F2d 232 (CA 3, 1971). See, also, People v Hoffmeister, 52 Mich App 219; 217 NW2d 58 (1974), and People v Collins, 52 Mich App 332; 217 NW2d 119 (1974).

3 People v Hill, 44 Mich App 308; 205 NW2d 267 (1973), did not acknowledge this test, even though both Giordenello v United States, 357 US 480; 78 S Ct 1245; 2 L Ed 2d 1503 (1958), and State v Licari, 153 Conn 127; 214 A2d 900 (1965), on which Hill relied, carefully indicated that validity of the arrest without a warrant was not an issue before the Court. As I have said before, with Justice Jackson and Lord Westbury, "I can only say that I am amazed that a man of my intelligence should have been guilty of giving such an opinion”.