Petition — Michigan v. Mosley

Supreme Court, U. &

‘a FILED

2 1977

IN THE

MICHAEL RODAK, R., CLERW

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1977

— 77 2882

THE PEOPLE OF THE STATE OF MICHIGAN,

Petitioner,

vs.

RICHARD BERT MOSLEY,

Respondent.

PETITION FOR A WRIT OF CERTIORARI

TO THE SUPREME COURT OF THE

STATE OF MICHIGAN

WILLIAM L. CAHALAN

Prosecuting Attorney

Wayne County

State of Michigan

EDWARD REILLY WILSON

Chief Appellate Attorney

TIMOTHY A. BAUGHMAN (P-24 381)

Assistant Prosecuting Attorney

12th Floor, 1441 St. Antoine

Detroit, Michigan 48226

Phone: (313) 224-5791

— - — —

TABLE OF CONTENTS

Opinions Below ee

Statement of Jurisdiction. . ......+e6-s

Question Presente

Constitution Provisions Involved. ... .

Statement of Facts. ........ 8

Reasons for Granting the Writ

, ̃⅛ «b's „„

Appendix "A" Opinion of the Michigan Court of

Appeals, Division I * 7” * * * * * * . * *

Appendix "B" -- Opinion of the Michigan Supreme

Co Wett... ee

il

INDEX OF AUTHORITIES CITED

Cases

Page

Brown v Illinois

422 US 590; 95 S Ct 2254; 45 L Ed 2d 416 (1975) 3, 7-12

Harris v United States

403 US 573; 91 S Ct 2075; 29 L Ed 2d 723 697 /¼᷑æ . 9

Johnson v Louisiana

406 US 356; 92 S Ct 1620; 32 L Ed 2d 152 (1972) . 9

Michigan v Mosley

423 US 96; 96 S Ct 321; 46 L Ed 2d 313 (1975) . . 7,9

Michigan v Tucker

77 US 433; 94 S Ct 2357; 41 L Ed 2d 182 (1974) . 10-11

Miranda v Arizona

384 US 436, 498; N 71; 86 S Ct 1602;

em SPS ea ee 9 ts

People v Mosley (After Remand)

400 Mich 181; 254 NW 2d 33 (1977). ..... . =

United States v Calandra

414 US 338, 348; 94 S Ct 613, 620; 38 L Ed 2d

e „ 6 & &.6 % . 10

United States v Janis

US 3 49 L Ed 2d 1046, 1056 (1976). 10

United States v Peltier

422 US 531; 95 S Ct 2313; 45 L Ed 2d 374 (1975) 10

U.S. Constitution

United States Constitution Amendment CV..

United States Constitution Amendment“

United States Constitution Amendment XIV... .

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1977

No. seeeeeece

THE PEOPLE OF THE STATE OF MICHIGAN,

Petitioner,

vs.

RICHARD BERT MOSLEY,

Respondent.

PETITION FOR A WRIT OF CERTIORARI

TO THE SUPREME COURT OF THE

STATE OF MICHIGAN

Now Comes William L. Cahalan, Prosecuting

Attorney in and for the County of Wayne, State of

Michigan, by Edward R. Wilson, Chief Appellate

Attorney, and Timothy A. Baughman, Assistant Pro-

secuting Attorney, and prays that a Writ of Certiorari

issue to review the judgment of the Supreme Court of

the State of Michigan entered in the above-entitled

cause on June 2, 1977.

OPINIONS BELOW

The opinion of the Michigan Court of Appeals,

Division I, is reported at 72 Mich App 289; 249 NW 2d

393 (1976) and is appended as Appendix "A". The

Opinion of the Michigan Supreme Court is reported at

400 Mich 181; 254 NW 2d 33 (1977), and is appended as

Appendix B.

STATEMENT OF JURISDICTION

The judgment of the Michigan Court of Appeals

reversing Respondent's conviction was entered on

November 22, 1976. On June 2, 1977, in lieu of granting

Respondent's application for leave to appeal, the

Michigan Supreme Court affirmed the Court of Appeals

on a different ground, holding that Respondent's arrest

was without probable cause and his confession was

therefore inadmissible upon retrial. The jurisdiction of

this Court is invoked under 28 USC Sec. 1257 (3), and

California v Stewart, decided sub nom, Miranda v

AN 84 US 436, 498, N 71; 865 Ct 1602, NN L Ed 2d

694 (1966).

QUESTION PRESENTED

I.

Whether Brown v Illinois, 422 US 590; 95 8 Ct

2254; 45 L Ed 2d 46 (1975) requires suppression of a

voluntary inculpatory statement where the initial police

action cannot be characterized as flagrant or purposeful

misconduct, and where prior to questioning other

circumstances intervened, specifically the statement of

an accomplice which named Respondent as the

murderer.

CONSTITUTIONAL PROVISIONS INVOLVED

The Fifth Amendment to the United States

Constitution provides in pertinent part:

No person...shall be compelled in any

criminal case to be a witness against

himself,....

The Fourth Amendment to the United States

Constitution provides:

The right of the people to be secure in

their persons, houses, papers and effects, against

unreasonable searches and seizures, shall not be

violated, and no warrants shall issue, but upon

probable cause, supported by oath or affirmation,

and particularly describing the place to be

searched, and the persons or things to be seized.

The Fourteenth Amendment to the United States

Constitution provides in pertinent part:

No State shall make or enforce any law

which shall abridge the privileges or immunities

of citizens of the United States; nor shall any

state aeprive any person of life, liberty, or

property, without due process of law; nor deny to

any person within its jurisdiction the equal

protection of the laws.

STATEMENT OF FACTS

Respondent was convicted of first degree felony-

murder. Respondent was arrested on April 8, 1971, at

1:05 p.m. for an unrelated robbery on the basis of an

anonymous telephone call (R 448), The arresting officer

testified that he also consulted pattern sheets“ on

lower eastside robberies before arresting respondent.

(Pattern sheets contain brief reports of recent crimes

with descriptions given by victims and witnesses.) The

officer felt Respondent fit the description of a person

involved in two robberies. The trial court impliedly

ruled the arrest proper, (the issue was raised and the

confession admitted, as did the Michigan Court of

Appeals, splitting 2-1 on the issue. The Michigan

Supreme Court subsequently held the arrest to be

without probable cause.

The arresting officer, Detective James Cowie of

the Armed Robbery Section of the Detroit Police

Department, conveyed Respondent to the Robbery,

Breaking and Entering Bureau on the 4th floor of police

headquarters.

Cowie informed Respondent Mosley of his

Miranda rights. Respondent signed a Constitutional

Rights Certificate of Notification acknowledging the

giving of those rights and stated he completely under-

stood his rights. Cowie then asked Respondent about a

particular robbery, the White Tower robbery.

Detective Cowie talked with Respondent Mosley

for only twenty minutes and the questioning ceased

when Respondent declined to talk about the White

Tower robbery. At no time did Respondent request an

attorney pursuant to the rights contained in the Miranda

warnings. Cowie then took Respondent Mosley from the

4th floor Armed Robbery Bureau to the 9th floor cell

block area, the time of said transfer being

approximately 4:00 p.m.; and except for informing

Respondent that Detective Gilbert Hill of the Homicide

Bureau would speak with him, Cowie had no further

contact with Respondent.

At 3:50 p.m. on the same day, April 8, 1971,

Detective Hill took a statement from one Anthony

Smith admitting complicity in the robbery of Leroy

8 and naming Respondent as the shooter (R 88-

89),

Thereafter, at about 6:20 p.m., Respondent

Mosley was taken from the 9th floor cell block area to

the 5th floor Homicide Bureau by Homicide Detective

Gilbert Hill. Hill saw Respondent to interrogate him

regarding the robbery-murder of Leroy Williams which

had occurred some three months earlier. Prior to

questioning, Hill again informed Respondent Mosley of

his Miranda rights and the purpose of the interrogation.

Respondent Mosley again indicated that he understood

his rights and executed a signed Miranda rights form.

At no time did he request counsel. Detective Hill then

proceeded to question Respondent relative to the

murder of Leroy Williams (R 104).

Respondent Mosley denied, "almost

immediately," any involvement in the murder (R 104).

Hill then informed Respondent that Anthony Smith had

made a statement naming Respondent Mosley as the

"shooter" in the slaying, whereupon Respondent heaved

a sigh and stated that he would tell Hill about the

killing. He then made a statement, which he signed,

admitting his role in the murder as well as the

— 2 prior and subsequent to the shooting (R

487-490).

Respondent Mosley testified that he was in fact

apprised of his Miranda rights by Sergeant Cowie prior

to being questioned about the robberies for which he

was arrested Respondent also stated that upon being

asked about the robberies he elected to exercise his

right to remain silent at which time the interrogation

by — was forthwith terminated (R 558-559, 569

571).

Defendant Mosley also acknowledged that

Detective Hill had informed him that Hill's interro-

gation concerned the Leroy Williams murder; Respond-

ent also admitted that Hill had in fact apprised him of

his Miranda rights prior to questioning (R 560-560).

Respondent also stated that the reason he confessed

was due to the fact that Detective Hill told him that

co-felon Anthony Smith had put all the blame on him

and not because he was coerced or because he did not

understand his rights or because he had been denied an

attorney (R 580). In fact, Respondent specifically

testified at trial that he was not physically abused or

threatened into making a statement.

The trial judge ruled that Respondent Mosley's

confession was voluntarily tendered and thus admissible

in evidence and said confession was used against

Respondent at trial (R 482, 487-490).

Respondent's conviction was reversed by a three-

judge panel of the Michigan Court of Appeals,

Division l, under date of January 14, 1974. The Michigan

Appellate Court found that defendant Mosley was in

fact twice apprised of his Miranda rights by Detectives

Cowie and Hill. However, the Michigan court held that,

based on the dictates of Miranda v Ariz 384 US 436

at 473-474; 86 S Ct 1602 at 1627-1625; Ed 2d 694 at

723 (1966), all interrogation of respondent should have

ceased when he declined to answer Detective Cowie's

ques tions.

This Court, in Michigan v Mosley, 423 US 96; 96

S Ct 321; 46 L Ed 2d » vacated the decision of

the Michigan Court of Appeals and remanded for

further proceedings. On remand, the Michigan Court of

Appeals reversed Respondent's conviction on an

instructional ground, but found his arrest to be proper.

In lieu of granting Respondent's application for leave to

appeal the Michigan Supreme Court then issued an

opinion holding Respondent's arrest to have been

without probable cause, and ruling, that based upon

Brown v Illinois, 422 US 590; 95 8 Ct 2254; 45 L Ed 2d

416 11975) Respondent's confession could not be admitted

into evidence upon retrial.

REASONS FOR GRANTING THE WRIT

The question presented by Petitioner is a sub-

stantial Federal Constitutional question, involving

application of a recent case of this Court, which

Petitioner submits has been clearly misconstrued and

misapplied by the Michigan Supreme Court.

A.

“The Michigan Supreme Court ruled that Respond-

ent's arrest was without probable cause, and that

Petitioner failed to demonstrate that the confession

was free of the primary taint of the illegal arrest.

People v Mosley, (After Remand) 400 Mich 181; 254 NW

977 The court 7 ely on Brown v Illinois,

422 US 590; 95 S Ct 2254; 45 L Ed 2d 416 (1975), but

failed to confront in any manner whatsoever the factors

mentioned in Brown which, in conjunction with Miranda

warnings, would demonstrate that the confession was

not the result of exploitation of the illegal arrest.

While Brown clearly stated that Miranda warnings do

not per se purge the taint, the Court made it equally

clear that the taint can be purged. Petitioner submits

that when the factors discussed in Brown are applied to

the undisputed facts of the instant case, it is plain that

the confession was not obtained by exploitation of the

illegal arrest.

The first factor discussed by the Court in Brown

(other than Miranda warnings) was the "temporal

proximity of fhe arrest and the confession." In Brown

the arrest occurred at about 7:45 p.m.; the confession

at 8:45 p.m. Respondent was arrested at 1:05 p.m., and

confessed just after 6:35 p.m. Thus, the confession did

not follow immediately on the heels of the arrest as it

did in Brown, but after a five and one-half hour

interval.

— — *

The second factor mentioned by the Court was

"the presence of jutervening circumstances." A crucial

circumstance intervened after arrest but before

Respondent's confession — Respondent's accomplice,

one Anthony Smith, named Respondent as the shooter in

the murder (Petitioner would note that this precise

point was made to this Court in oral argument of

7 v Mosley, 423 US 96; 96 8 Ct 321; 46 L Ed 2d

„ pt of Argument p. 53). By the time

Sergeant Hill questioned Respondent he had probable

cause to arrest. See Harris v United States, 403 US

573; 91 S Ct 2075; 29 L Ed 2d 72 0 decision

of the Michigan Supreme Court would have the police

release and rearrest Respondent where additional infor-

mation giving probable cause is obtai.ied in order to

avoid exploitation of the initial arrest. Such facile

maneuvering should not be required. As a matter of law,

the acquisition of additional information giving rise to

probable cause renders the subsequent interrogation

free of the taint of the illegal arrest. In Brown this

Court, when discussing intervening circumstances,

wrote "See Johnson v 406 US 356; 92 S Ct

1620; 32 L Ed 2d 152 (1973). eup subsequent to an

unlawful arrest was held to be conducted by means

sufficiently distinguishable to be purged of the primary

taint in Johnson v Louis where after the arrest and

before fhe lineup, the endant was arraigned and

committed to jail by a magistrate. Certainly, where

officers gain probable cause subsequent to and in-

dependent from the arrest, further action in the form of

lineups or interrogation is purged of the primary taint.

The Michigan Supreme Court erred in not recognizing

that the intervening circumstance of the acquisition of

probable cause renders the subsequent interrogation

free of the primary taint of the illegal arrest.

The final factor considered by the Court in

Brown, and the one to which this Court attached par-

tieular emphasis, was "the purpose and flagrancy of the

10

official misconduct." Giving special emphasis to the

official conduct is only appropriate, given the purpose

of Brown; that is, to deter Fourth Amendment

violations.

The official misconduct in the instant case

cannot be viewed as flagrant or purposeful — the trial

judge ruled the arrest proper; the Michigan Court of

Appeals ruled the arrest proper, splitting 2-1 on the

issue; and the Michigan Supreme Court held the arrest

improper. Of the judges who have reviewed the matter,

then, seven have found the arrest improper and three

have found it to be proper. Where judicial minds are in

disagreement, and the arrest is upheld until reaching

the state's highest court, it can scarcely be said that

officers, not trained as legal technicians, purposefully

and flagrantly violated the Constitution.

In this regard Petitioner would direct the Court

to United States v Peltier, 422 US 531; 95 8 Ct 2313; 45

L Ed 24 S74 (1975), where this Court said:

If the purpose of the exclusionary rule is to deter

unlawful police conduct then evidence ...should

be suppressed only if it can be said that the law

enforcement officer had knowledge, or may

properly be charged with knowledge, that the

search [arrest] was unconstitutional under the

Fourth Amendment.

See also United States v Calandra, 414 US 338, 348; 94S

Ct 613, 620; 38 L Ed 2d 55 70 (the exclusionary rule

is a "judicially created remedy designed to safeguard

Fourth Amendment rights generally through its deter-

2 effect, rather —— a personal constitutional right

of the party aggrieved"); Michigan v Tucker, 417 US 433;

94 S Ct 2357; 41 L Ed 202 70 ("where the official

action was pursued in complete good faith, the deter-

rence rationale loses much of its force"); and United

States v Janis, us ; 49 L Ed 2d 1046, 1056

li

(1976) ("The Court...has established that the prime

purpose of the rule, if not the sole one, is to deter

future unlawful police conduct.™). It cannot de said

that the officers here had knowledge or may properly be

charged with knowledge that the arrest was unconstitu-

tional. To suppress valuable evidence in the absence of

an insolvent use of authority and a showing of some

incontestable compensating gain is thus wholly inappro-

priate. Michigan v Tucker, supra. The exclusionary

rule should sat cooly to this case.

In sum, Petitioner submits that Brown was never

intended as a vehicle to suppress confessions which are

"Mirande-perfect," incontestably voluntary, removed in

time from initial arrest, gained subsequent to the

acquisition of information providing probable cause, and

where the police misconduct in making the arrest was

plainly not purposeful or flagrant. Petitioner would also

point out that this case having once before been before

the Court the record is clean and undisputed and the

issue squarely presented. Petitioner urges that the Writ

be granted to correct the error of the Michigan

Supreme Court and to make plain that conf

should not be excluded on the basis of Fourth

Amendment violations where application of the factors

in Brown reveal that the taint, such as it was, has been

purged. —

CONCLUSION

_ It is respectfully submitted that for the reasons

outlined above, the decision of the Michigan Supreme

Court is in conflict with the principles of Brown v

Illinois such that plenary review should be granted

Respectfully submitted,

WILLIAM L. CAHALAN

Prosecuting Attorney

Wayne County

State of Michigan

EDWARD REILLY WILSON

Chief Appellate Attorney

By: TIMOTHY A. BAUGHMAN (P-24381)

Assistant Prosecuting Attorney

12th Floor, 1441 St. Antoine

Detroit, Michigan 48226

P

TAB:do hone: (313) 224-5791

Dated: July 27, 1977.

— —

13

APPENDIX A

OPINION OF THE MICHIGAN COURT OF APPEALS,

DIVISION I

(People of the State of Michigan v Richard Bert Mosley)

(No. 14318)

(Filed November 22, 1976)

Before: Danhof, C.J., and R. M. Maher and D. F.

Walsh, JJ.

ON REMAND FROM U.S. SUPREME COURT

Danhof, C.J. On April 5, 1972, the defendant was

found guilty by a jury on one count of felony murder in

violation of MCLA 750.316; MSA 28.548.

The defendant having taken an appeal by right,

this Court reversed his conviction and remanded the

case for a new trial after having decided only a single

issue. It was the conclusion of this Court that the

defendant's confession had been obtained in violation of

Miranda v Arizona, 384 US 436; 86 S Ct 1602; 16 L Ed 2d

6); and was therefore improperly admitted.

People v Mosley, 51 Mich App 105; 214 NW2d 564 (1974).

eave to — was denied by our Supreme Court, 392

Mich 764 (1974). Upon grant of the people's application

for writ of certiorari, the United States Supreme Court

vacated our holding and remanded the case for our

further consideration. Mic nv Mosl 423 US 96;

96S Ct 2h 46 L Ed 20 S13 Uf —

In his brief and supplemental brief, the defendant

raises four meritorious issues which we now consider.

14

He first argues that although Michigan v Mosiey is

binding upon the courts of this state as the proper

interpretation of the US Const, Am V, we are free to

interpret the identical language found in Const 1963, art

l. 8 17 as we feel is proper, and in doing so establish

what he terms a “higher” standard Such an action is

not without precedent. See, for example, the holdings

of the Michigan Supreme Court regarding illegal

searches and seizures in People v Beavers, 393 Mich

554; 227 NW2d 511 (1975), double protection in

People v White, 390 Mich 245; 212 NW2d 222 (1973), and

right to counsel in People v Franklin Anderson, 389

Mich 155; 205 NW2d 4aT 097%), —

We are unaware of any existing authority rooted

in Michigan law, rather than upon Miranda, which

provides that in such a factual setting a confession must

be excluded, whether or not found voluntary.

It is Our opinion that if such a rule is to be for-

mulated, it is within the exclusive province of the

Supreme Court to do so. In the absence of existing

Michigan law to support the defendant's position, we

hold that his confession is not to be excluded on the

single ground of the police conduct complained of here.

This is not to say that it is necessarily admissible. It

is still subject to exclusion if made involuntarily or

otherwise illegally obtained.

Defendant next contends that his confession

— de 1 as $ product of an illegal arrest

r one e rules of W Sun v United States, 371

— . 401; 83 SCt 40K T7724 T USEN- Unlike

e Miranda rule, which is designed to protect a

defendant's Fifth Amendment right against self-in-

crimination, the rule of W Sun is designed to dis-

courage disparagement of nis or her Fourth Amendment

right to remain free of illegal seizures of the person.

Consequently, mere compliance with the rule of

Miranda and showing of voluntariness of the confession

— ——

— — —ñ ꝶ — : ee —

15

are not sufficient to render the confession admissible if

it appears that the confession is a product of an illegal

arrest. Brown v Illinois, 422 US 590; 95 S Ct 2254; 45 L

Ed 2d 416 (1975). In order for us to sustain the

defendant's contention, two requisites must be estab-

lished: that the defendant was illegally arrested and

that the statement made was not "sufficiently an act of

free will to purge the primary taint", Brown, supra, 422

US at 597. U

We have examined the record of the circum-

stances surrounding the defendant's arrest and conclude

that the arrest of the defendant was made upon prob-

able cause to believe that he was the perpetrator of one

or more robberies and was, therefore, legal. Con-

sequently, the confession that followed was not in-

admissible on this ground.

The defendant's next assignment of error relates

to the method by which the trial court submitted his

confession to the jury. Having found at an early Walker

hearing, People v Walker (On Rehea , 374 Mich 341;

132 Nwid-87- (1965), that ie conte ession had been

voluntarily made, the court told the jury:

"THE COURT: Now, I think it is time for the

Court to caution the jury as to what has happened here

as to the statement.

"| have ruled, as a matter of law, that this state-

ment was at the alleged time here, let's put it that way,

was given freely and voluntarily.

"MR. ZIEMBA: Now, I object your Honor.“

Later in his charge to the jury the court repeated

his finding of the Walker hearing and instructed the jury

that it was their function to decide whether the

statement had in fact been made. The effect of the

instructions delivered is to stamp upon the confession

the endorsement of the court and substantially deprive

the defendant of his right to a jury determination of

whether the statement had been made, and if so, the

weight to be afforded it. Walker, supra. Upon this

ground, the defendant is entitled to a new trial. le

v Williams, 46 Mich App 165; 207 NW2d 480 0

People Vv Gilbert, 55 Mich App 168; 222 NW2d 305 (1974).

The defendant also assigns error to the unob-

jected-to failure of the trial court to instruct the jury

on the elements of the underlying felony. We have held

that even absent any objection, if commission of the

underlying felony is substantially in issue, it is incum-

bent upon the court to instruct on its elements. Failure

to so instruct may constitute manifest injustice. People

v Jones, 66 Mich App 223; 238 NW2d 813 (1975), P E V

McGhee, 67 Mich App 12; 239 NW zd 74 (1976). The trial

court is cautioned to, upon retrial, consider the impact

of these decisions.

The defendant's conviction is reversed and the

matter remanded to the trial court.,

D.F. Walsh, J., concurred.

R.M. Maher, J. (concurring in part; dissenting in

part). I agree with the majority's decision to remand

for a new trial because the trial court improperly

announced to the jury its finding that defendant's con-

fession was voluntary. I cannot, however, agree with

the majority's conclusion that defendant's arrest was

legal.

In the opinions issued by the United States

Supreme Court in Michigan v Mosley, 423 US 96; 96 8

Ct 321; 46 L Ed 20 M1875) the Tegality of defendant's

arrest was not reviewed. But both the majority opinion

of Justice Stewart and the dissenting opinion of Justice

Brennan noted the basis for defendant's arrest. Justice

Stewart referred to the testimony of the arresting

officer that "informtion supplied by an anonymous

caller was the sole basis for his arrest of Mosley". 423

US at 97, fn I. Justice Brennan, in dissent, pointed out

17

that an anonymous tip was "conceded by the Court to be

the sole basis for Mosley's arrest". 423 US at 118

(dissenting opinion).

A review of the testimony taken at the hearing on

defendant's motion to suppress his confession confirms

the statements found in the Supreme Court opinions.

The arresting officer testified that some time prior to

defendant's arrest on April 8, 1971, he received an

anonymous phone call while on duty at Detroit Police

Headquarters. The caller named defendant as one of

the persons involved in recent armed robberies on the

city's lower east side.

On direct examination, the arresting officer was

asked:

"Q. What information did you have that prompted

you to arrest Richard Bert Mosley on that particular

date?

"A. It was some time during the first week in

April, got an anonymous phone call from—that—and the

party gave me the name of several persons that were

operating on the lower east side, holding up places and

that, and the name of Richard Mosley and another

par ty t wo other men, I believe—that the information

was that they had held up.“

On cross-examination, the officer testified:

"Q. At the conclusion of your conversation with

this anonymous telephone caller, did you apply to any

judge or magistrate for a warrant of arrest for Mr.

Mosley?

"A. No. sir.

"Q. For what offense specifically did you arrest

Mr. Mosley at 1:05 p.m. or thereabouts on April 8th of

1971?

"A. For investigation of the robbery armed of the

Blue Goose Bar and the White Tower Restaurant on

Mack.

18

"Q. Was the White Tower Restaurant mentioned

to you during your telephone conversation with this

anonymous caller?

"A. Yes.

"Q. And the Blue Goose Bar also?

"A. Yes.

"Q. Would it be fair to say, Sergeant Cowie, that

you arrested Mr. Mosley on April 8th of 1971, solely and

exclusively on the information that you received from

this anonymous telephone caller?

"A. Yes."

The hearing on defendant's motion continued the

next . The arresting officer then produced "pattern

sheets“ to show that more than the anonymous phone

call prompted defendant's arrest. The officer testified

on direct examination that he had _ consulted

descriptions from pattern sheets on recent lower east

side robberies before he arrested defendant and that

defendant matched several descriptions. The officer

Stated that defendant matched the description of the

person involved in the March 25, 1971, robbery at the

Night Party Store. The pattern sheet gave this

description of the robber: 20s, 5-9, 130, afro, pencil

mustache. medium complexion. The officer also stated

that defendant matched the pattern sheet descriptions

of two of the three men in the March 19, 1971, robbery

at the Kercheval Market. One man was described as 20,

5-1, 160, dark complected, short hair. The other was

described as 20, 5-6, 130, dark complected, trim

mustache.

Pattern sheets are synopses of recent crimes

drawn from the accounts given by victims and witnesses

and circulated internally by the police department.

19

The officer had testified the day before that he

had arrested defendant for investigation of robberies at

the Blue Goose Bar and at the White Tower Restaurant.

He did not attempt on direct examination to match

defendant with the pattern sheet descriptions of the

persons involved in those _ incidents. On cross-

examination, the officer stated that defendant could

have fit the description given for the number | man at

the White Tower robbery. That man was described as

20, 5-8, 150, light complected, medium afro.

The four pattern sheet descriptions that the

officer stated he relied on were, in part, inconsistent.

The Kercheval Market robbers were described as dark

complected, the Night Party Store robber as medium

complected and the White Tower Restaurant robber as

light complected. Two robbers were described as

having afros, one as having short hair. Two were

described as having mustaches, while two were not.

Where the descriptions were not obviously inconsistent,

they were not very helpful. There are thousands of

young black males of medium height and medium weight

in Detroit.

Under these circumstances, I cannot find a valid

warrantless arrest of defendant. An anonymous tip,

which did not verify itself, ef. Draper v United States,

358 US 307; 79 S Ct 329; 3 L 27 (1959), even if

combined with several general descriptions that could

fit thousands of people in the area, does not provide the

basis for a reasonable belief that defendant had

committed the robberies under investigation. pee v

United States, 393 US 410; 89 S Ct 584; 21 L 7

(1965), People v Walker, 64 Mich App 138; 235 NW2d 85

(1975). Under W Sun v United States, 371 US 471; 83

S Ct 407; 9 L 80 70 441 (1963), and Brown v Illinois, 422

US 590; 95 S Ct 2254; 45 L Ed 2d 416 (1975), admission

of defendant's confession was error.

20

APPENDIX B

OPINION OF THE MICHIGAN SUPREME COURT

(People of the State of Michigan v Richard Bert Mosley)

: (After Remand)

(No. 59171)

(Filed June 2, 1977)

PER CURIAM. On April 5, 1972, the defendant

was found guilty by a jury on one count of felony

murder in violation of MCLA 750.316; MSA 28.548. The

Court of Appeals reversed defendant's conviction,

finding that defendant's confession had been obtained in

violation of Miranda v Arizona, 384 US 436; 86 S Ct

1602; 16 L. Ed 2d 694 (1966). People v Mosley, 51 Mich

App 105; 214 NW2d 564 (1974), leave to appeal denied

392 Mich 764 (1974). Upon grant of the people's

application for writ of certiorari, the United States

to — vacated that holding and remanded the

case for further consideration. Michigan v Mosley, 423

US 96; 96 S Ct 321; 46 L Ed 2d a3 1978 a

The Court of Appeals reversed defendant's con-

vietion and granted a new trial because the trial eourt

improperly announced to the jury its finding that as a

matter of law defendant's confession to the police was

voluntary. The Court of Appeals refused to hold the

defendant's arrest was illegal and that defendant's

eae * * — of that illegal arrest.

eople v 2 n Remand), 72 Mich 289;

v Meter (On App 289; 249

Defendant has filed an application for leave to

appeal arguing that the police lacked probable cause to

arrest him and that admission into evidence of his

confession was error.

— —U— ee eee

21

Defendant's arrest was based on an anonymous tip

which did not verify itself. Cf. Draper v United States,

358 US 307; 79 8 Ct 329; 3 L ead 34-337 (1555). The tip

was not corroborated by other evidence providing a

basis for a reasonable belief that defendant had

committed the crime.

Defendant was taken to the police station im-

mediately after his arrest and interrogated by the

arresting police officer. A couple of hours later he was

turned over to a homicide detective who interrogated

defendant about the crime. Eventually defendant

confessed. The record of the testimony taken at

defendant's Walker hearing (see People v Walker [On

Rehearing] , 374 Mich 331; 132 NW 965]) discloses

a e police lacked probable cause to arrest

defendant and that the people failed to sustain the

burden of showing that the confession was free of the

primary taint of defendant's illegal arrest. Brown v

Illinois, 422 US 590; 95 8 Ct 2254; 45 L Ed 2d 4f6 (1975).

Admission into evidence of defendant's confession was

error.

Pursuant to GCR 1963, 853.2(4), we affirm the

judgment of the Court of Appeals reversing defendant's

conviction and remanding the matter to the trial court

and remand this matter to the trial court for further

proceedings consistent with this opinion.

Kavanagh, C.J. and Williams, Levin, Coleman,

Ryan, and Blair Moody, Jr., JJ., concurred.

Fitzgerald, J., took no part in the decision of this

case.