People v. Mosley , 400 Mich. 181 ( 1977 )

400 Mich. 181 (1977) 254 N.W.2d 29

PEOPLE
v.
MOSLEY

Docket No. 59171.

Supreme Court of Michigan.

Decided June 2, 1977.

Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, William L. Cahalan, Prosecuting Attorney, Edward Reilly Wilson, Research, Training & Appeals, and Timothy A. Baughman, Assistant Prosecuting Attorney, for the people.

Carl Ziemba for defendant.

(AFTER REMAND)

PER CURIAM:

On April 5, 1972, the defendant was found guity 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 U.S. 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 Supreme Court vacated that holding and remanded the case for further consideration. Michigan v Mosley, 423 U.S. 96; 96 S. Ct. 321; 46 L. Ed. 2d 313 (1975).

The Court of Appeals reversed defendant's conviction and granted a new trial because the trial court 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 confession was a direct result of that illegal arrest. People v Mosley (On Remand), 72 Mich. App. 289; 249 NW2d 393 (1976).

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.

Defendant's arrest was based on an anonymous tip which did not verify itself. Cf. Draper v United States, 358 U.S. 307; 79 S. Ct. 329; 3 L. Ed. 2d 327 (1959). 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 immediately 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 NW2d 87 [1965]), discloses that the 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 U.S. 590; 95 S. Ct. 2254; 45 L. Ed. 2d 416 (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.