People v. Davenport , 46 Mich. App. 579 ( 1973 )

R. B. Burns, J.

When a police officer attempted to arrest defendant without a warrant for the misdemeanor of being a disorderly person by uttering obscene words in public, defendant resisted. A district court jury found defendant not guilty of the charge of being a disorderly person. Lansing ordinances, ch 22, . § 22-13(7). Some months later a circuit court jury convicted defendant of the felony of resisting arrest. MCLA 750.479; MSA 28.747.

Prior to his trial in circuit court defendant timely moved to dismiss the charge of resisting arrest. He claimed that his acquittal on the charge of being a disorderly person was a finding that the arrest he admittedly resisted was an illegal arrest, that the principle of collateral estoppel prohibited relitigation of the legality of that arrest, and that therefore the prosecution could never prove that he resisted a legal arrest. The motion was denied. The trial judge held that a police officer is entitled to arrest an individual for a misdemeanor without a warrant if that officer has reason to believe from personal observation that the individual is committing or has just committed a misdemeanor in the officer’s presence. He also held that an acquittal establishes only that the jury doubted defendant’s guilt, not that the arresting officer had no reason to believe that a crime was being committed in his presence.

Defendant appeals the denial of his motion to dismiss.

If his arrest for being a disorderly person was illegal, defendant was entitled to resist that arrest. People v Krum, 374 Mich 356 (1965), cert den, 381 US 935; 85 S Ct 1765; 14 L Ed 2d 699 (1965). The burden is on the prosecution to prove that the arrest resisted was a legal arrest. People v Clarence Reed, 43 Mich App 51 (1972).

The fact that defendant was acquitted of using vile and obscene language has no bearing upon the legality of the arrest, any more than the finding of guilty in a criminal proceeding would legalize an arrest unlawful when made. Coverstone v Davies, 38 Cal 2d 315, 322; 239 P2d 876, 880 (1952), cert den sub nom, Mock v Davies, 344 US 840; 73 S Ct 50; 97 L Ed 653 (1952).

A police officer may arrest an individual for a misdemeanor without a warrant if the misdemeanor was committed in the officer’s presence or if, from personal observations, the officer has reason to believe that a misdemeanor was committed in his presence. MCLA 764.15(a); MSA 28.874(a). People v Bishop, 30 Mich App 204 (1971); People v Dixon, 45 Mich App 64 (1973).

A police officer has reason to believe that a misdemeanor has been, or is being, committed in his presence if the circumstances observed by him would lead a reasonable person to conclude that he was witnessing the commission of a misdemeanor by the person arrested. Coverstone v Davies, supra.

The principle known as collateral estoppel is applicable to civil and criminal cases alike. When a question of fact is put in issue and determined by a competent trier of fact it cannot afterwards be disputed between the same parties. Simpson v Florida, 403 US 384; 91 S Ct 1801; 29 L Ed 2d 549 (1971); People v Albers, 137 Mich 678 (1904).

However, the principle is not applicable in the present case. In the defendant’s trial for the use of vile and obscene language the issue was the defendant’s guilt. In the present case the issue is whether or not the police officer acted as a reasonable person in determining if a misdemeanor was committed in his presence. The jury determined the officer acted reasonably.

Affirmed.

Danhof, J., concurred.