Certiorari denied by the United States Supreme Court January 27, 1975.
SWAINSON, J.
A DSR bus driver named Lucian Fryling was fatally wounded during the night of November 18, 1964, at LaSalle Boulevard and Webb in the City of Detroit. Two eyewitnesses saw a man hurrying away from the bus after the shooting but they were not able to see the man's face.
One week later, on November 25, 1964, the police received information from a Joe Smith which led them to seek Dan Johnson, the informer and principal witness in this case. When Johnson learned that the police were looking for him, he reported to the precinct station. After being interviewed by the detectives in charge of the investigation, Johnson made a statement at approximately 12:30 a.m. on November 26 (Thanksgiving Day), 1964.
At the trial Johnson testified that he and appellant had gone to the scene where the killing occurred on four or five occasions to watch the buses and to plan the robbery of a bus driver. On the afternoon of November 18, 1964, the day of the shooting, they had discussed robbing a driver. The meeting took place in appellant's car and a third person, Bill Smith, was present. Johnson claimed he did not see appellant again that day. Johnson identified a gun found in the trunk of appellant's automobile shortly after he was arrested as the gun he had seen in appellant's bedroom one month before the killing, and said that appellant sometimes kept the gun in the trunk of his automobile. Both Johnson and the police testified that Johnson had told the police on the morning of November 26 everything he was then relating on the stand.
To avoid confusion it should be noted that the record clearly indicates that Joe Smith and Bill Smith are not the same individual.
Acting on the information supplied by Johnson and without a warrant the police immediately went to appellant's apartment arriving at 2:15 a.m., November 26. The police officers knocked on the door. When appellant asked who it was, one of them replied that it was Jimmy Edwards. Appellant opened the door a crack and the police pushed their way into his apartment and arrested him.
After appellant was under their control, the police searched the apartment but did not find a handgun. The police then took appellant's keys and searched his car, which was parked on the street in front of his apartment house. A handgun was discovered in the car's trunk and was seized by the police.
Appellant was taken to police headquarters sometime before 4 a.m. on the morning of the 26th. He was not taken before a judicial officer for arraignment until 2 p.m. on the afternoon of the 27th. In the interim defendant was questioned several times and confronted with the handgun seized from his car and with Johnson's statement implicating appellant in the murder of the DSR bus driver. According to the police, appellant made four unsigned statements during this period.
Appellant made unsuccessful pretrial motions to suppress the admission of the gun and his unsigned statements. He was subsequently tried and convicted of first-degree murder and sentenced to life imprisonment. The Court of Appeals affirmed the conviction in a per curiam opinion dated June 28, 1972, and this Court granted leave to appeal, 388 Mich. 780 (1972).
A detailed examination of the prolonged delay between trial and appellate consideration of this case is attached to this opinion.
In this appeal we focus on appellant's two primary allegations of error.
1. Was the warrantless search of appellant's car, which was parked on the street in front of the apartment in which appellant was arrested, made in violation of the state and/or Federal constitutional rights to be free from unreasonable civil search and seizure?
2. Did the delay in appellant's arraignment and the nature of the interrogation process render appellant's statements inadmissible at trial?
I
Whenever the police intrude into a sphere of protected privacy without the prior authorization of a warrant issued by a neutral judicial officer, their conduct is subject to careful scrutiny by the courts. To sustain the validity of a warrantless search the burden rests on the people to demonstrate that the police acted in a reasonable manner, based on probable cause and in response to an exigent circumstance bringing the search under one of the specifically established exceptions to the warrant requirement. Coolidge v New Hampshire, 403 U.S. 443, 454-455; 91 S Ct 2022; 29 L Ed 2d 564 (1971); People v Mason, 22 Mich. App. 595, 616-617; 178 N.W.2d 181 (1970). If the people fail to meet this burden it is the duty of our courts to suppress the admission into evidence of any fruits of the unwarranted search. Mapp v Ohio, 367 U.S. 643; 81 S Ct 1684; 6 L Ed 2d 1081 (1961).
The first step we must take in reviewing the search of appellant's parked automobile and the resulting seizure of the handgun is to determine if the warrantless search arguably fits within one of the exceptions to the warrant requirement. The people argue that the search was proper under what is generally described as the "automobile exception" and it is to the consideration of this exception that we now turn.
The only other exception that could possibly justify the search would be the exception for search incident to a valid arrest. Even assuming for the moment that appellant's arrest was valid the law extant in 1964 did not authorize the search of a vehicle parked outside of a person's home when the arrest was accomplished inside of the home. Compare, Harris v United States, 331 U.S. 145; 67 S Ct 1098; 91 L Ed 1399 (1947) and United States v Rabinowitz, 339 U.S. 56; 70 S Ct 430; 94 L Ed 653 (1950) with Coolidge v New Hampshire, supra at 403 U.S. 443, 455-457.
The most factually relevant Michigan case existing at the time of the present search and seizure, People v Harper, 365 Mich. 494; 113 N.W.2d 808 (1962), upholds the warrantless search of an automobile on the basis of the reasonableness of the police conduct and the presence of probable cause to search. The Court declined to uphold the search as simply incident to an arrest. Id. at 365 Mich. 494, 501. Likewise, in People v Williams, 383 Mich. 549; 177 N.W.2d 151 (1970), the Court upheld a search of an automobile shortly after defendant's arrest on the basis of probable cause to search and the reasonableness of the search
The perimeters of the automobile exception have not been definitively established by the United States Supreme Court or by our state's courts. From the early leading case of Carroll v United States, 267 U.S. 132; 45 S Ct 280; 69 L Ed 543 (1925) to more recent cases such as Chambers v Maroney, 399 U.S. 42; 90 S Ct 1975; 26 L Ed 2d 419 (1970) and Coolidge v New Hampshire, 403 U.S. 443; 91 S Ct 2022; 29 L Ed 2d 564 (1971), the United States Supreme Court has resolved each case narrowly on its own facts based on the interrelated concepts of reasonableness and probable cause. Each new situation thus requires the courts to reflect on the rationale underlying the exception and to adopt the teaching of the prior cases to the facts of the case at bar. Cf. Cady v Dombrowski, 413 U.S. 433, 439; 93 S Ct 2523, 2527; 37 L Ed 2d 706, 713 (1973).
In Carroll v United States, supra, the Supreme Court initially recognized that there were situations in which a warrantless search of an automobile would not violate the Fourth Amendment warrant requirement. Appellant Carroll challenged the authority of Federal agents to stop and search his automobile for the presence of illegal liquor under the National Prohibition Act. The Court considered both the primary goal of the act — to seize contraband liquor rather than to prosecute violations — and the fact that the agents had probable cause to believe that illegal liquor was being transported in Carroll's moving vehicle. In this limited context the Court stated:
"We have made a somewhat extended reference to * * * show that the guaranty of freedom from unreasonable searches and seizures by the Fourth Amendment has been construed * * * as recognizing a necessary difference between a search of a store, dwelling house or other structure in respect to which a proper official warrant readily may be obtained, and a search of a * * * automobile, for contraband goods, where it is not practicable to secure a warrant because the vehicle can be quickly moved out of the locality or jurisdiction in which the warrant must be sought." 267 U.S. 132, 153.
The Carroll Court certainly did not see itself as eliminating the warrant requirement simply because the object to be searched was a mobile vehicle. It emphasized that: "In cases where the securing of a warrant is reasonably practical, it must be used * * * ". 267 U.S. 132, 156.
Again in 1949 the Court reviewed a situation involving the transportation of liquor contrary to law and upheld the search of defendant Brinegar's automobile after a highway stop on probable cause. Brinegar v United States, 338 U.S. 160; 69 S Ct 1302; 93 L Ed 1879 (1949). In the course of resolving the case before it, the Court repeated the narrow scope of the holding in Carroll.
"The Carroll decision held that, under the Fourth Amendment, a valid search of a vehicle moving on a public highway may be had without a warrant, but only if probable cause for the search exists." 338 U.S. 160, 164.
The Supreme Court first examined the warrantless search of a parked automobile in Preston v United States, 376 U.S. 364; 84 S Ct 881; 11 L Ed 2d 777 (1964). In Preston the facts reveal that the police received a complaint at 3 a.m. that three unidentified men were acting suspiciously and had been sitting in a parked car in a business district since 10 p.m. The police investigated the complaint and questioned the occupants of the car. The police then arrested the three men for vagrancy and had the automobile removed to a police garage. Later, they searched the car at the police garage and seized two loaded revolvers and other evidence that was used against Preston at his trial on charges of conspiracy to rob a federally insured bank.
Mr. Justice Black writing for the Court found the search of the automobile at the police garage to be unreasonable. At the time the occupants were arrested the police did not search incident to arrest nor did they have probable cause to search the vehicle itself. After the car was in police custody, there was no danger of its removal and therefore no circumstances making a warrantless search reasonable. Broadly interpreting the prior automobile exception cases, Justice Black wrote:
"Our cases make it clear that searches of motorcars must meet the test of reasonableness under the Fourth Amendment before the evidence obtained as a result of such searches is admissible." 376 U.S. 364, 366.
See also, Cooper v California, 386 U.S. 58, 59-60; 87 S Ct 788; 17 L Ed 2d 730 (1967); Dyke v Taylor Implement Manufacturing Co, 391 U.S. 216; 88 S Ct 1472; 20 L Ed 2d 538 (1968).
Then, in a case that at first appears to be departure from past precedent, the Court in Chambers v Maroney, supra, upheld the validity of warrantless search of an automobile taken into police custody after its occupants were stopped, and arrested on robbery charges. The Court speaking through Justice White, however, did not perceive the holding in Chambers as stating a different rule of law than that found in the prior automobile exception cases. In Chambers the police had the requisite probable cause to search the automobile for weapons at the time that it was stopped and its occupants arrested. Justice White then argued that since there was originally probable cause to search, the police in essence did not intrude into an area of protected privacy in any greater degree by searching the car when it arrived at the station house than they would have by immobilizing it until a warrant could be obtained.
The Chambers Court was, in fact, very mindful of the past cases. In reaching its result it recognized that there was not an "automobile exception" per se but rather an exception that allowed for warrantless searches of moving vehicles based on probable cause.
"In enforcing the Fourth Amendment's prohibition against unreasonable searches and seizures, the Court has insisted upon probable cause as a minimum requirement for a reasonable search permitted by the Constitution. As a general rule, it has also required the judgment of a magistrate on the probable-cause issue and the issuance of a warrant before a search is made. Only in exigent circumstances will the judgment of the police as to probable cause serve as a sufficient authorization for a search. Carroll, supra, holds a search warrant unnecessary where there is probable cause to search an automobile stopped on the highway; the car is movable, the occupants are alerted, and the car's contents may never be found again if a warrant must be obtained. Hence an immediate search is constitutionally permissible." 399 U.S. 42, 51.
Insight into the limits of the automobile exception may also be found in the later dissenting opinion of Justice Brennan in Cady v Dombrowski, 413 U.S. 433, 451:
"But the search of the Thunderbird plainly cannot be sustained under the `automobile exception,' for our prior decisions make it clear that where, as in this case, there is no reasonable likelihood that the automobile would or could be moved, the `automobile exception' is simply irrelevant."
See also, Cardwell v Lewis, 417 U.S. 583, 597-598, 94 S Ct 2464; 41 L Ed 2d 325 (1974) (Stewart, J., dissenting):
"[T]he Carroll doctrine simply recognizes the obvious — that a moving automobile on the open road presents a situation `where it is not practicable to secure a warrant because the vehicle can be quickly moved out of the locality or jurisdiction in which the warrant must be sought.' Carroll, supra, at 153. See also Almeida-Sanchez v United States, 413 U.S. 266, 269 [ 93 S Ct 2535; 37 L Ed 2d 596 (1973)]. Where there is no reasonable likelihood that the automobile would or could be moved, the Carroll doctrine is simply inapplicable. See, e.g., Coolidge, supra; Preston v United States, 376 U.S. 364."
The most recent automobile exception case factually relevant to appellant White's appeal is Coolidge v New Hampshire, supra. Although decided by the Court in 1971, Coolidge reviewed police conduct taking place in 1964 and 1965. In terms of the dates involved and the character of the search performed, Coolidge bears a great similarity to the present case.
The essential facts in Coolidge indicate that the police went to speak to Coolidge at his home on January 28, 1964, in the course of investigating a murder that had been committed earlier that month. Coolidge spoke to the police and accompanied them to take a lie detector test after which he was not arrested. The police continued their investigation and on February 19, 1964, returned to Coolidge's home and arrested him on the murder charge. At the same time the police seized Coolidge's automobile parked in his driveway and towed it to the station house where it was searched without a valid warrant. Vacuum sweepings from the interior of the car were seized and later admitted into evidence over objection. Coolidge was thereafter convicted of the murder.
The police had obtained a warrant to search but the Court held the warrant invalid since it was issued by the state attorney general rather than a neutral magistrate. 403 U.S. 443, 449-453.
In examining this search the Court found the automobile exception inapplicable. "Here there was probable cause, but no exigent circumstances justified the police in proceeding without a warrant". 403 U.S. 443, 464. The facts in Coolidge placed the seizure outside of the reasonable limits for warrantless searches.
The Court spoke through a plurality opinion authored by Justice Stewart. Justices Douglas, Brennan and Marshall joined in the opinion of Justice Stewart on the automobile exception issue, part II-B of the opinion. Justice Harlan also concurred with the above Justices in part II-D of Coolidge that found no exigent circumstances present to justify a warrantless seizure of the automobile.
"The word `automobile' is not a talisman in whose presence the Fourth Amendment fades away and disappears. And surely there is nothing in this case to invoke the meaning and purpose of the rule of Carroll v United States — no alerted criminal bent on flight, no fleeting opportunity on an open highway after a hazardous chase, no contraband or stolen goods or weapons, no confederates waiting to move the evidence, not even the inconvenience of a special police detail to guard the immobilized automobile. In short, by no possible stretch of the legal imagination can this be made into a case where `it is not practicable to secure a warrant,'". 403 U.S. 443, 461-462.
Following the instruction of these United States Supreme Court precedents, we have serious doubts that the people have sustained their initial burden of demonstrating that the search here in issue fits within the perimeters of the automobile exception to the warrant requirement. The appellant's automobile was parked and unoccupied when the police arrived with an ample number of officers to allow the automobile to be guarded while a warrant was sought. The one circumstance, in our analysis, that might arguably support the reasonableness of the warrantless search was the police suspicion that a weapon was located in the automobile; but a legal basis for the proposition that the suspected presence of a gun alone proves an exigent circumstance is derived only from the dicta in Coolidge. The presence of a weapon did not alter the Supreme Court's analysis in either Preston v United States, supra, or Dyke v Taylor Implement Manufacturing Co, supra. Furthermore, even this Coolidge dicta may be read to indicate that the presence of a weapon is only one factor in creating, and not the sum total, of an exigent circumstance. See, for example, Cady v Dombrowski, supra.
Based then on the case law and the basic requirement of search and seizure law, we are inclined at this point to hold that the warrantless search and seizure of appellant's automobile was unreasonable, and therefore not within the automobile exception. In our opinion, however, it is not necessary to test our decision on this basis alone. "The reasonableness of any search or seizure must be determined as of the time of the search or seizure. In the determination of reasonableness, consideration may be given to the information possessed by the police officer." People v Tisi, 384 Mich. 214, 219; 180 N.W.2d 801 (1970). In the present case the nature of the information on which the police acted also leads us to conclude that the warrantless search was unreasonable.
The police had not focused on appellant as a suspect in the homicide until after they had questioned Dan Johnson. Then, acting solely on the information supplied by Johnson, the police arrested appellant and searched his apartment and car and seized the handgun. From the record we learn that the police first sought out Dan Johnson on November 25th after a Joe Smith had reportedly given the police information leading them to Johnson. After Johnson learned the police were looking for him, he voluntarily reported to the station house. The police interviewed Johnson at the station house who, according to his own trial testimony, met an initial physical description given to the police by one of the witnesses at the scene of the shooting. Then, early in the morning of November 26th, Johnson made a statement indicating that although he was not a witness to the shooting, he had reason to believe that appellant was probably the person responsible for the homicide.
The record does not clearly indicate the precise reason that the police questioned Johnson — whether they considered him a suspect or merely a lead to further information. The people did not produce Joe Smith nor did they indicate the substance of the information regarding Johnson that Joe Smith gave to the police. The record does indicate, however, that Johnson did meet part of the vague description (6 feet tall, 170 pounds) given by one of the witnesses to the police shortly after the shooting.
Since the people carry the burden of proving probable cause for the police actions, we in this case, must accept the inference from the record that is most favorable to appellant. We, of course, do not express any belief or suspicion that Dan Johnson was in fact involved in the shooting of the DSR bus driver. We look only to determine if the police could use his statement without corroboration as their sole basis for a warrantless search of appellant's automobile.
The record, however, reveals no prior contact between the police officers and Johnson that would have allowed them to assess his reliability. Neither is there any indication that the police officers had available or knew of sufficient facts to corroborate the details of Johnson's statement prior to their arrest and search of appellant. All we can gather from this record is that the police first acted on the information by arresting and searching appellant and thereafter obtained a material witness warrant against Johnson under which he was detained until he testified against appellant at trial.
We note that Johnson did not fit into the category of either a police officer, victim or uninvolved eyewitness that would allow the police, without more, to credit his reliability. McCreary v Sigler, 406 F.2d 1264, 1269 (CA 8, 1969) cert den, 395 U.S. 984; 89 S Ct 2149; 23 L Ed 2d 773 (1969); People v Lewis, 240 Cal.App.2d 546, 550; 49 Cal.Rptr. 579 (1966); 37 Mo L Rev 538, 541 (1972). Thus, the people must be able to point to some evidence in the record that indicates that the police had reason to believe that Johnson was providing them with reliable information.
Under the law extant at the time of the search we find that the police did not have a sufficient basis to credit Johnson's statement as reliable. The present facts form a marked contrast to the information held sufficient to justify a warrantless search in Draper v United States, 358 U.S. 307; 79 S Ct 329; 3 L Ed 2d 327 (1959). In Draper the police acted on information from an informer who had previously provided them with reliable and accurate information of criminal activity and arrested Draper with heroin in his possession. Even then, however, Draper was not arrested until several aspects of the informer's statement were visually verified. The police were not required under the holding in Draper to verify the fact that Draper possessed heroin prior to the arrest but they were required to be reasonably certain of the truth of the informer's statement before they acted. "[W]ith every other bit of [the informant's] information being thus personally verified, [the narcotics agent] had `reasonable grounds' to believe that the remaining unverified bit of [the informant's] information — that Draper would have the heroin with him — was likewise true." 358 U.S. 307, 313. Accord, Whiteley v Warden, 401 U.S. 560; 91 S Ct 1031; 28 L Ed 2d 306 (1971); People v Tisi, 384 Mich. 214, 219; 180 N.W.2d 801 (1970).
Compare also People v Harper, 365 Mich. 494; 113 N.W.2d 808 (1962) where this Court found sufficient probable cause to search defendant's car trunk after defendant stated to the police that a quantity of marijuana was stored there.
Johnson's statement could have been used lawfully as an investigative tool and as a "lead" to interview appellant White. The police also could have attempted to corroborate its details prior to the arrest and search and presented their information to a judicial officer for his determination as to whether a warrant should issue. The police, however, did none of these things. Rather, they proceeded to conduct a warrantless search.
The judicial preference for searches conducted under the authority of a search warrant should be expressed not only in terms of the narrowly drawn exceptions to the warrant requirement but also in terms of a more stringent standard of review applied to all aspects of warrantless searches. The courts thereby encourage police officers to seek a warrant before acting.
"The point of the Fourth Amendment, which often is not grasped by zealous officers, is not that it denies law enforcement the support of the usual inferences which reasonable men draw from evidence. Its protection consists in requiring that those inferences be drawn by a neutral and detached magistrate instead of being judged by the officer engaged in the often competitive enterprise of ferreting out crime." (Footnote omitted.) Johnson v United States, 333 U.S. 10, 13-14; 68 S Ct 367; 92 L Ed 436 (1948). See also, Jones v United States, 362 U.S. 257, 271; 80 S Ct 725; 4 L Ed 2d 697 (1960); Whiteley v Warden, 401 U.S. 560, 566; 91 S Ct 1031; 28 L Ed 2d 306 (1971).
In this case we conclude that the police proceeded to conduct a warrantless search in a situation that did not present an exigent circumstance and on the basis of questionably reliable information. The decision of the trial court denying appellant's motion to surpress was erroneous.
The search and seizure violated the protection of the Fourth and Fourteenth Amendments and Const 1963, art 1, § 11. The introduction of the gun as evidence should have been suppressed.
II
The second issue we must review is appellant's contention that the trial judge erred by failing to suppress certain admissions made to the police after arrest but before arraignment. Factually, the record reveals that the following events occurred between the time of appellant's arrest on November 26 and his arraignment on November 27: November 26, 2:30 a.m. — Appellant arrested and taken to police headquarters.
4 a.m. — Appellant was questioned at police headquarters Homicide Bureau by Detectives Eifrid and Rohn. The police claim that appellant was advised of his constitutional rights; appellant states that no warnings were given him at this time.
Appellant was confronted with the handgun seized and, according to the police, made a statement, never signed, accounting for his activities on the evening of November 18, 1964. Appellant also stated that he purchased the seized handgun on November 24, from Bill Smith and had placed it in his car trunk where it remained until seized by the police. This first interrogation ended at about 5 a.m.
7:30 a.m. — Appellant was again questioned by Detectives Eifrid and Rohn. Appellant admitted being informed of his constitutional rights. He was then confronted with a ballistics report linking the seized gun to the homicide and with Johnson's statement. Appellant, according to the police, now disclaimed his 4 a.m. statement and said he wanted to make a new statement. This statement, never signed, related that appellant was originally trying to protect Bill Smith, who had admitted the shooting to him. Appellant said he purchased the gun from Smith only after Smith assured him that it had not been used as a murder weapon.
8:30 a.m. — Appellant was placed in a cell block at police headquarters.
12 noon — The police claim that appellant was fed for the first time. Appellant maintains he was not fed until 3 p.m.
4 p.m. — Appellant was interrogated by officers from the Holdup Squad concerning an unrelated crime.
7:30 p.m. — Appellant was interrogated by Detective Eifrid. According to the detective's testimony, appellant was read in full Dan Johnson's statement relating how Johnson and appellant on several occasions had watched coaches with an intent to rob the drivers but had never done so. Eifrid testified that after hearing the statement appellant "stated that it was true, except that Dan Johnson was trying to place too much blame on him [appellant]."
8 p.m. — Appellant consulted with an attorney.
November 27, 11:40 a.m. — Appellant being concerned that he had not as yet been taken to court asked a turnkey if he could see someone related to his case. Detective Rohn responded to talk to appellant. Appellant stated that this interview was limited to determining when he was going to court and if the police had located Bill Smith. In contrast, Detective Rohn testified that when he entered the interview room, appellant "stood up, tears started to come down his cheeks. He turned and faced the wall and he made the remarks, `I didn't mean it, he lunged at me and the gun went off.'" Detective Rohn testified that appellant then quickly regained his composure and stated that he was referring to Bill Smith and not to himself.
2 p.m. — Defendant was arraigned in court on a charge of first-degree murder.
In this pre- Miranda v Arizona, 384 U.S. 436; 86 S Ct 1602; 16 L Ed 2d 694; 10 ALR3d 974 (1966) situation, we first examine the admissibility of appellant's statements under the Michigan statutory requirements governing the arrest-arraignment process.
The statutes governing the arrest-arraignment process provide that after a defendant has been arrested on felony charges he shall be taken before a magistrate for arraignment "without unnecessary delay." MCLA 764.13, 764.26; MSA 28.871(1), 28.885. These sections, while straightforward in their command to the police, have not been interpreted by this Court or require the exclusion of every admission or confession obtained during a period of unreasonable delay. Only when the delay has been employed as a tool to extract a statement has an exclusionary rule been imposed under these sections. People v Hamilton, 359 Mich. 410; 102 N.W.2d 738 (1960); People v Harper, 365 Mich. 494; 113 N.W.2d 808 (1962); People v Farmer, 380 Mich. 198; 156 N.W.2d 504 (1968).
In the present case the trial judge acted within the bounds of his discretion when he held appellant's statements admissible. The police, in our opinion, should have acted promptly in bringing appellant before a magistrate. The fact that November 26 was Thanksgiving Day was, in itself, no excuse for delay. People v Hamilton, 359 Mich. 410, 417; 102 N.W.2d 738 (1960). Even assuming, however, that the delay was unnecessarily long, we cannot say that the trial judge was, under the present record, required to find that the police used the delay as a tool to further their interrogations.
The trial judge could have reasonably accepted the police testimony that appellant was repeatedly warned of his constitutional rights before being questioned. Appellant also had an opportunity to consult with a lawyer. Moreover, the most damaging of appellant's alleged statements, that made on November 27th, was not the product of a police interrogation. Appellant requested the November 27th interview with the police officers and, according to police testimony, volunteered his statement as soon as the detective arrived.
We are also unable to accept appellant's contention that the interrogations were of a coercive nature in violation of his constitutional rights. We are mindful that the people carry the burden of proving voluntariness. People v Zeigler, 358 Mich. 355, 364; 100 N.W.2d 456 (1960). Our independent review of the record, however, again indicates that the trial judge reached a decision that was reasonable under the facts of this case.
Likewise, we find appellant's citation to Fahy v Connecticut, 375 U.S. 85; 84 S Ct 229; 11 L Ed 2d 171 (1963) unpersuasive. In Fahy the Supreme Court held that it was error to not allow Fahy "a chance to show that his admissions were induced by being confronted with the illegally seized evidence." 375 U.S. 85, 91. In the present case appellant's trial counsel argued both the illegality of the seizure of the gun and the inadmissibility of appellant's statements. Counsel, however, did not ask the court to determine if the confrontation with the illegally seized weapon had "induced" appellant to make his statements. Therefore, we find no error under Fahy on the part of the trial judge.
Appellant, of course, may move to have his statements suppressed under Fahy v Connecticut, as part of the normal procedures incident to the new trial that we find is required under Part I of today's opinion. Cf. People v Kennedy, 384 Mich. 339; 183 N.W.2d 297 (1971).
The Court of Appeals is reversed in part and affirmed in part. This case is remanded for a new trial.
T.M. KAVANAGH, C.J., and T.G. KAVANAGH, J., concurred with SWAINSON, J. APPENDIX
This case has taken ten years to reach this Court on original appeal. We cannot avoid our duty to comment upon the negligent and cavalier manner in which this case has proceeded to final appellate consideration. During these ten years Mr. White has remained in prison when, as we hold today, he was entitled to a new trial. The people also have surely been prejudiced by this delay. It will undoubtedly be difficult to find witnesses and prepare for a new trial concerning events that occurred in 1964. See, People v Thomas, 390 Mich. 93, 95; 210 N.W.2d 776 (1973).
These proceedings have taken every conceivable turn. Appellant's arrest and trial took place in a relatively normal period of time from November 1964 to April 1965. The appellate process began in April 1965 with the appointment of Willis F. Ward as counsel. Mr. Ward subsequently was appointed to the Michigan Public Service Commission (MPSC). Commissioners are prohibited from practicing law in addition to their position. Mr. Ward requested attorney Clayton L. Davis, Jr. to inform the Recorder's Court of Ward's inability to pursue the appeal. Mr. Davis finally wrote in September 1966 (1-1/2 years later); and requested to be appointed substitute appellate counsel. Over the next three years Mr. Davis failed to proceed with any speed and demonstrated a lack of diligence in pursuing the matter. In 1967 he sent appellant one letter reporting work on the case was in progress. Appellant contacted Mr. Davis several times requesting action. When these efforts proved fruitless, appellant wrote the Supreme Court Administrator to enlist his aid in obtaining effective assistance of counsel. The inquiry of the Administrator motivated Davis to "promise" to file an application for delayed motion for a new trial in May, 1968. The motion was finally filed in January 1969. The motion was opposed by the prosecutor's office and denied in May 1969 by the recorder's court. Action on the case then rested another nine months, until February 1970 when Davis was dismissed as counsel under the direction of the Supreme Court Administrator.
Mr. Ward retained responsibility for proceeding with appellant's appeal until Mr. Davis was formally appointed substitute appellate counsel. Subsequently, Mr. Ward was assessed $100 court costs by the Court of Appeals for failure to meet the time limits required to preserve appellant's appeal as of right.
Mr. Joseph Freed was appointed new appellate counsel and work began again on appellant's appeal. Mr. Carl Ziemba then became associated with the appeal. The record indicates Mr. Freed handled much of the early proceedings, and Mr. Ziemba the later proceedings.
The administrative morass in which appellant was entangled tripped on its own feet, however, with the extra appointment of Mr. M. Hector Cisneros as counsel. Mr. Cisneros promptly withdrew when informed of the appointment of Mr. Freed. Through most of 1970 Freed battled to prepare the case, experiencing amongst other hurdles, difficulties in obtaining trial transcripts. The matter was finally on its way to consideration by the Court of Appeals in late 1970. Then in December 1970 the prosecutor obtained the first of many time extensions which put the matter over into 1971. Leave for delayed application to appeal was granted by the Court of Appeals March 23, 1971, a long 6-1/2 years after appellant White was first incarcerated.
There were several prosecution delays in filing briefs through the summer of '71. The case was scheduled for hearing for the Fall. On October 11, 1971, People v White was finally heard by the Court of Appeals. Eight months later, on June 28, 1972, the Court of Appeals issued its opinion affirming the conviction. The case was immediately appealed to the Supreme Court. In September, 1972, it was necessary for this Court to remand the case to the recorder's court for a determination of indigency. Indigency was found and on December 5, 1972, the State Appellate Defender, Mr. White's fifth counsel, was assigned the case.
The case moved slowly through the Supreme Court proceedings in 1973. Appellant was granted two extensions of time to file his brief in March 1973. Notice of hearing was given August 6, 1973 and the appeal finally argued and submitted October 3, 1973. This case has been under consideration since that time.
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