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03/08/76 PEOPLE v. SMALL

March 8, 1976

PEOPLE
v.
SMALL



Appeal from Washtenaw, Edward D. Deake, J.

V. J. Brennan, P. J., and D. E. Holbrook and M. F. Cavanagh, JJ. D. E. Holbrook, J., concurred. M. F. Cavanagh, J. (dissenting).

SYLLABUS BY THE COURT

Opinion of the Court

1. Arrest -- Felonies -- Probable Cause.

An arresting officer must possess facts which establish probable cause that an individual has committed a felony, not mere vague and general suspicions.

2. Arrest -- Felonies -- Probable Cause.

An arresting officer makes his determination of probable cause not as a legal scholar determines the existence of consideration in support of a promise but as a man of reasonable prudence and caution would determine whether the person arrested has committed a felony.

3. Searches and Seizures -- Automobiles -- Arrest -- Parameters of Search.

It is well within the parameters of a proper search incident to a lawful arrest to search an open automobile trunk which is within the reach of a defendant when he is arrested.

4. Appeal and Error -- Prosecutors -- Improper Remarks -- Prejudicial Effect -- Timely Objections -- Cautionary Instructions.

Reversal based upon improper prosecutorial comments is precluded unless the prejudicial effect is so great that it cannot be cured by timely objection and a cautionary instruction.

5. Appeal and Error -- -- Miscarriage of Justice -- Statutes.

No judgment or verdict shall be set aside or reversed or a new trial granted by any court of this state in a criminal case on the ground of error in pleading or procedure, unless in the opinion of the court after an examination of the entire cause, it shall affirmatively appear that the error complained of has resulted in a miscarriage of Justice (MCLA 769.26; MSA 28.1096).

Dissent by M.F. Cavanagh, J.

6. Arrest -- Arrest Without Warrant -- Police Officers -- Reasonable Cause.

A police officer is empowered to make an arrest without a warrant upon reasonable cause to believe a felony has been committed and reasonable cause to believe that the person arrested has committed that felony.

7. Arrest -- Constitutional Law -- Police Officer's Knowledge -- Function of Court.

It is the function of a court to determine whether the facts available to officers at the moment of the arrest would warrant a man of reasonable caution in the belief that an offense has been committed where the constitutional validity of an arrest is challenged.

8. Arrest -- Reasonable Cause -- Hearsay -- Police Officers.

It is entirely proper for police to use hearsay as part of the facts available to them to decide whether there are reasonable grounds for an arrest.

9. Arrest -- Probable Cause -- Sufficiency -- Information Subsequently Gained.

The factual sufficiency for probable cause is measured at the moment a person is arrested, and information gained subsequent to the arrest may not be used to support the information known by the arresting officer at the time of the arrest.

10. -- Association with Criminals -- Personal Fault.

Mere association with a criminal does not satisfy the individualistic determination of personal fault which our ...


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