author: Per Curiam. J. H. Gillis, J.

text:
    PEOPLE v GARCIA
    Opinion op the Court
    1. Constitutional Law — Criminal Law — Constitutional Standards — Police Activities — Restriction.
    A state is free as a matter of its own law to impose greater restrictions on police activity than those which the United States Supreme Court holds to be necessary under Federal constitutional standards.
    2. Searches and Seizures — Reasonableness—-Time of Search or Seizure — Police Officer- — Information.
    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 who is conducting the search or seizure.
    3. Searches and Seizures — Outside of Curtilage — Reasonableness —Constitutional Law — Construction—Evidence.
    The proviso in a section of an article of the Michigan Constitution protecting against "unreasonable searches and seizures” which prohibits the exclusion from evidence of "any narcotic drug, firearm, bomb, explosive or any other dangerous weapon, seized by a peace officer outside the curtilage of any dwelling house” precludes a construction of the Michigan search and seizure clause imposing a higher standard of reasonableness for searches and seizures of items named in the proviso than the United States iSupreme Court has held applicable under the Fourth Amendment (US Const, Am IV, Const 1963, art 1, § 11).
    4. Searches and Seizures — Interim Bail Statute — Higher State Standard — Arrest—Traffic Violation — Pat-Down Search— Suppression of Evidence — Statutes.
    The interim bail statute embodies a legislative policy affording a qualification for higher state standards on police conduct involved in searches and seizures than those required under the Federal standard; therefore, it was unreasonable for a police officer after arresting defendant for a minor traffic violation and completing an otherwise proper frisk for weapons to proceed with a more intrusive search of the defendant’s inner pockets which cannot be justified either as a protective search for weapons or as an effort to uncover evidence of a traffic offense, and evidence seized in the further search should be suppressed (MCLA 780.581; MSA 28.872[1]).

      References for Points in Headnotes
    [1-3] 68 Am Jur 2d, Searches and Seizures §§ 5, 6.

       68 Am Jur 2d, Searches and Seizures §§ 68-70.

       68 Am Jur 2d, Searches and Seizures § 20.
    [4 — 6] 8 Am Jur 2d, Bail and Recognizance § 21.
    68 Am Jur 2d, Searches and Seizures §§ 39, 103.

      5. Criminal Law — Searches and Seizures — Interim Bail Statute— Traffic Offenses — Custodial Arrest — Pat-Down Search— Statutes.
    A police officer after stopping a defendant for a minor traffic violation for which a custodial arrest is made and after a pat-down search for weapons is made has a duty to inform the defendant of the defendant’s rights under the interim bail statute and, upon arrival at the station house, to accept bail proffered by the defendant or one acting on his behalf if no magistrate is readily available for an arraignment (MCLA 780.581; MSA 28.872[1]).
    Dissent by J. H. Gillis, J.
    6. Searches and Seizures — Search Incident to Arrest — Custodial Arrest — Interim Bail Statute — Weapons.

      The interim bail statute does not circumvent the right of a police officer to guarantee his own safety by restricting his right to search an individual who is under full custodial arrest; a police officer has every right to insure that the individual he has arrested does not possess any instrument which could be used as a weapon to harm the officer or effectuate an escape (MCLA 780.581; MSA 28.872[1]).

    Appeal from Saginaw, Hazen R. Armstrong, J.
    Submitted October 5, 1977, at Lansing.
    (Docket No. 28413.)
    Decided February 7, 1978.
    Jose Garcia was convicted of possession of cocaine, carrying a weapon in an automobile, extortion, and subornation of perjury. Defendant appeals.
    Conviction for possession of cocaine and carrying a weapon in an automobile vacated; conviction for extortion and subornation of perjury affirmed, and the matter remanded.

      Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, Robert L. Kaczmarek, Prosecuting Attorney, and Lawrence W. Smith, Assistant Prosecuting Attorney, for the people.

      Doherty & Thomas, P. C., for defendant on appeal.
    Before: D. C. Riley, P. J., and J. H. Gillis and R. M. Maher, JJ.
   Per Curiam.

Following a jury trial, defendant Jose Garcia appeals his conviction of possessing the controlled substance cocaine, MCLA 335.341(4)(b); MSA 18.1070(41)(4)(b), carrying a weapon in an automobile, MCLA 750.227;' MSA 28.424, extortion, MCLA 750.213; MSA 28.410, and subornation of perjury, MCLA 750.424; MSA 28.666.

I.

On September 25, 1974, at approximately 6 a.m., Officer Jessie Ibanez, patrolling alone in the city of Buena Vista, observed the driver of a 1973 Pontiac make an improper left turn. Officer Ibanez followed the Pontiac and signaled the driver to pull over. The driver (later identified as defendant) came to a stop in an adjacent K-Mart parking lot. The sole passenger, Marcos Martinez, remained in the Pontiac.

Emerging from his car, defendant met the officer between the two vehicles. The officer advised defendant of the reason for the stop (viz., an improper left turn and failure to signal for a left turn) and asked him for his operator’s license. Defendant responded that he had no license in his possession. Officer Ibanez directed defendant to the police car, informed him that he "would have to go with” the officer and instructed him to place his hands on the patrol car. The policeman then began to pat defendant down "because he was going to jail”. The officer testified at trial that he was searching defendant for weapons and not contraband. In the course of this search, the officer felt an object in an inner pocket of defendant’s jacket, an "object which I thought was a file or something * * * [because] when I pressed it, it maintained its shape”. This testimony conflicted with the officer’s account at the preliminary examination:

"Q. [Defense attorney] [D]id it feel like a knife to you?
"A. [Officer Ibanez] No, sir.
"Q. Did it feel like a weapon of any kind to you?
"A. It felt like something that wouldn’t retain its a * * * it kept retaining its shape, when I squeezed it.
"Q. But not like a weapon?
"A. No, sir.”

Apprised of the conflict by defense counsel, Officer Ibanez acknowledged his prior testimony, including the statement that the object did not feel like a weapon. Defense counsel then asked:

"Q. Now you said you knew it was a file?
"A. [Officer Ibanez] No, sir, I didn’t say it was a file. I said it could have been a file; could be anything.
"Q. Could be anything. Could be a piece of paper.
"A. Could also be a piece of tinfoil.”

The record discloses that the unresilient object turned out to be a tinfoil packet containing cocaine. A more thorough search of defendant’s pockets yielded another tinfoil packet of cocaine. At this, Officer Ibanez placed defendant in the back seat of the patrol car, radioed for back-up support, and, on the arrival of 'Officer Richard Schaefer, approached the passenger, Martinez. At Officer Ibanez’s request, Martinez stepped from the car.

"Q. [Defense attorney] Why did you ask him to step out of the vehicle?
"A. [Officer Ibanez] I wanted to see — I had reason to believe possibly there was some more in the car, possibly more narcotics, more narcotics — there could be more.
"Q. Then what did you do, after he got out of the car? Did you proceed to search him?
"A. No, I asked him for I.D. He said he didn’t have none. Then I asked him to — when I was asking him to turn around, I put my hand on his back pocket. So he had a wallet. I took it out. He had I.D.”

Officer Ibanez then searched Martinez more thoroughly, discovering in the process seven .45-caliber bullets. The officer then led Martinez to the cruiser and told him to sit in the back seat. Next Officer Ibanez removed defendant from the back seat, placed handcuffs on him and directed him to sit beside Martinez. With Officer Schaefer standing by, Officer Ibanez searched the front seat of the Pontiac but found nothing. A second search, conducted by both officers, again produced nothing. At this point, Officer Ibanez returned to the cruiser and talked to Martinez, telling him that if a gun were found in the car he (Martinez) would go to jail. Officer Ibanez also told Martinez that if he cooperated the police would give him a break. Martinez then stated that there was a gun in the car, allegedly without specifying its precise location, but added that it was not his. Officer Ibanez then released Martinez and permitted him to walk away. A third and final search disclosed a .45-caliber gun between the driver’s bucket seat and the console.

In addition to the foregoing testimony, Officer Ibanez related several instances, subsequent to the discovery of the cocaine, in which defendant uttered threats against the officer and his family; the defendant, according to Officer Ibanez, also urged the officer to testify untruthfully in court. These alleged statements by defendant ultimately led to the extortion and subornation of perjury charges.

II.

In a pre-trial motion, a motion for directed verdict and on appeal to this Court, defendant has consistently urged suppression of the cocaine, the gun "and all testimony of appellant’s threats and bribes” as the poisonous fruit of an illegal search. Specifically, defendant contends (1) that, under Michigan law, the full search of defendant’s person incident to an arrest for a traffic offense exceeded the permissible limits of a protective pat-down search; (2) that, under the interim bail statute, MCLA 780.581; MSA 28.872(1), as interpreted in People v Dixon, 392 Mich 691; 222 NW2d 749 (1974), the instant personal search contravened defendant’s right to post bail prior to being subjected to any custodial search or seizuie; and (3) the automobile search, conducted after defendant had been taken into custody, was unjustified since it could not have yielded fruits of a traffic violation.

A.

Defendant concedes that as a matter of Federal constitutional law the search of his person did not offend the Fourth Amendment. United States v Robinson, 414 US 218; 94 S Ct 467; 38 L Ed 2d 427 (1973), Gustafson v Florida, 414 US 260; 94 S Ct 488; 38 L Ed 2d 456 (1973). Instead, defendant urges us to hold the instant searches, precipitated by a concededly valid traffic arrest, unreasonable under state law.

Undoubtedly, "a State is free as a matter of its own law to impose greater restrictions on police activity than those * * * [the United States Supreme] Court holds to be necessary upon federal constitutional standards. See, e.g., Cooper v California, 386 US 58, 62 [87 S Ct 788; 17 L Ed 2d 730] (1967); Sibron v New York, 392 US 40, 60-61 [88 S Ct 1889; 20 L Ed 2d 917] (1968). See also State v Kaluna, 55 Haw 361, 368-369, 520 P 2d 51, 58-59 (1974).” Oregon v Hass, 420 US 714, 719; 95 S Ct 1215; 43 L Ed 2d 570 (1975). And, to be sure, a number of cases have declined to apply Robinson and Gustafson, supra, in interpreting their law. See Zehrung v State, 569 P2d 189 (Alaska, 1977), People v Brisendine, 13 Cal 3d 528; 119 Cal Rptr 315; 531 P2d 1099 (1975), People v Clyne, — Colo —; 541 P2d 71 (1975), State v Kaluna, supra.

The Michigan Supreme Court, although having had occasions to comment on Robinson and Gustafson, supra, has never expressly ruled that these Federal cases apply in the factual setting now before us. Cf., People v Stergowski, 391 Mich 714, 724-726; 219 NW2d 68 (1974), People v Moore, 391 Mich 426, 432-435; 216 NW2d 770 (1974), and People v Dixon, supra, at 706-707.

In Stergowski, our Supreme Court affirmed the denial of defendant’s motion to quash or suppress evidence of heroin found in a search of defendant’s person. Defendant Stergowski had been lawfully arrested for assaulting a police officer. The arresting officer noticed " 'a large bulge in * * * [defendant’s] right pocket’ ”. 391 Mich at 716. Feeling the bulge, the officer noted that " 'it appeared to have some bullets in there’ ”. 391 Mich at 716. He emptied the pocket of its contents:

" 'a large quantity of money, some of it being counterfeit, and four bullets for a 9-millemeter gun and some heroin and a plastic vial, and inside the plastic vial there was 11 tinfoil packs [later found to contain heroin].’ ” 391 Mich at 716.

Although noting the holdings in Robinson and Gustafson, supra, the Michigan Supreme Court ultimately ruled:

"It is unquestioned that defendant was subject to a warrantless search incident to * * * [a] lawful arrest. In People v Tisi, 384 Mich 214; 180 NW2d 801 (1970), the Court said at p 219:
" '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 officer. People v Harper (1962), 365 Mich 494 [113 NW2d 808].’ ’’The search is to be tested 'in light of the information or facts possessed by the officer at the time he made the search’. People v Danny Williams, 383 Mich 549, 556; 177 NW2d 151 (1970).
"The police had received a report of an individual firing 'shots’. They saw defendant carrying what looked to be and was a pistol and ordered defendant to drop the gun. Defendant refused to drop the weapon when ordered and fled from the officers. The officers properly followed him into a house where he tried to hide the weapon but was disarmed. Defendant struck an officer with a metal box. Defendant was lawfully arrested. All these facts justify the body search. It was reasonable and proper. The entire range of search and seizure cases speak to the 'reasonableness’ of the procedures. In the context of this series of events, the officers’ acts were reasonable.” 391 Mich at 727-728. (Footnote omitted.)

In Dixon, supra, the Supreme Court relied on the prior version of the interim bail statute in effect at the time of defendant’s arrest, MCLA 780.581; MSA 28.872(1), to support suppression of heroin found on defendant during a station house search, where defendant had already been searched for weapons prior to his arrival at the jail:

"We are persuaded * * * that the sense of the statute and its purpose of avoiding unnecessary incarceration of minor offenders can only be served by imposing on the arresting officer (and now, the sheriff as well) the duty to inform the person about to be jailed of the statutory protection of which he otherwise would probably be ignorant.
"Any evidence gained in derogation of this statutory right is to be suppressed; no other remedy is as likely to assure its full enforcement and the protection of the citizenry at large from unwarranted and unnecessary inconvenience, embarrassment and risk attendant incarceration for a minor traffic offense.” 392 Mich at 703, 705-706.

Distinguishing Robinson and Gustafson, supra, the Court observed:

"Dixon had already been searched for weapons before even entering the police car. The station house procedures were not intended nor could they be justified as a further search for either weapons or possible fruits of the crime.” 392 Mich at 706. (Footnote omitted.)

In Moore, supra, a police officer arrested defendant " 'for soliciting for immoral purposes’ ”. 391 Mich at 432.

"Moore [then] placed his hand in his pants pocket. The officer, believing Moore might be reaching for a weapon, grabbed him and spun him against the side of an automobile. Moore then opened his right hand and a small plastic vial fell to the ground.
"The vial was of clear plastic with a snap-on top of a kind commonly used by pharmacies to dispense medicine. The vial was unlabeled. Inside were 20 small capsules containing white powder. Eighteen capsules were of clear plastic and the other two were red. The capsules lacked the fresh, uniform appearance typical of capsules dispensed by a pharmacy. Immediately upon taking Moore to the police station, the officer conducted a cursory examination of the vial, concluded that the capsules contained heroin, and then arrested Moore on a narcotics charge.” Id. (Footnote omitted.)

Reiterating without clearly approving the holdings of Robinson and Gustafson, supra, the Court then said:

"In both Robinson and Gustafson there were motions to suppress and full hearings concerning the reasonableness of the seizure. Moore did not move to suppress and there is no reason on this record to question the reasonableness of the arresting officer’s belief upon his cursory examination that the white powder contained in the aberrant transparent capsules in the curiously unmarked, transparent vial was heroin.” 391 Mich at 433- 434. (Footnote omitted.)

In a footnote appended to this passage, the Court stated in part:

"We express no opinion * * * about the constitutional validity of an examination by the arresting officer of the seized material any more intensive or time-consuming than a cursory examination like those conducted by the arresting officers in Robinson, Gustafson and this case. Cf. People v Trudeau, 385 Mich 276, 279-281; 187 NW2d 890 (1971); People v Roderick Walker, 27 Mich App 609; 183 NW2d 871 (1970).” 391 Mich at 434- 435, fn 5. (Emphasis added.)

Further, the Court noted:

"While Const 1963, art 1, § 11 protects against 'unreasonable searches and seizures’, its proviso prohibiting the exclusion from evidence of 'any narcotic drug, firearm, bomb, explosive or any other dangerous weapon, seized by a peace officer outside the curtilage of any dwelling house’, precludes a construction of the Michigan search and seizure clause imposing a higher standard of reasonableness for searches and seizures of items named in the proviso than the United States Supreme Court has held applicable under the Fourth Amendment. In People v Pennington, 383 Mich 611; 178 NW2d 471 (1970), this Court held the narcotic and firearms proviso invalid under the Federal constitution only to the extent it would permit receipt of evidence barred under the Fourth and Fourteenth Amendments as construed by the United States Supreme Court.” 391 Mich at 435. (Footnotes omitted.)

B.

As we perceive it, the question defendant frames is not whether as a matter of state constitutional law, Const 1963, art 1, § 11, we may impose higher standards on police conduct than those federally required, but whether the legislative policy embodied in the interim bail statute affords a justification for the imposition of such higher standards. We are persuaded that the defendant’s contention is correct.

Here, defendant was arrested for a minor traffic offense. He readily complied with the officer’s signal to stop the car and obligingly permitted the officer to search his person. Testing this search in light of the information possessed by the officer at the time he made the search, Stergowski, supra, at 727, we cannot justify this intrusion into defendant’s inner pockets either as a protective search for weapons or as an effort to uncover evidence of a traffic offense. Once the officer had completed his otherwise proper frisk for weapons, he clearly lacked justification to proceed further.

Under the circumstances of this case, we believe that a sound regard for the policy underpinning the interim bail statute as fleshed out by the Dixon Court (namely, the avoidance of "unwarranted and unnecessary inconvenience, embarrassment and risk attendant incarceration for a minor traffic offense”, 392 Mich at 705-706) requires us to hold the instant search and seizure unreasonable and thus to suppress the evidence of cocaine. If Dixon were only to apply at the station house, as the prosecutor maintains, then astute police officers would quickly learn that, absent an advice of rights under the bail statute, evidence produced in an exhaustively intrusive on-the-scene search could be admitted but evidence derived from an equally comprehensive search at the jail could not. We doubt that the Supreme Court intended to create such an anomaly. Thus, to shore up what would otherwise be a gaping loophole in the law, we hold that Officer Ibanez, after having frisked defendant for weapons and having found none, had no authority to retrieve or examine the seemingly innocuous tinfoil packets. Instead, he had a duty to inform this defendant "of the statutory protection [under the interim bail act] of which he otherwise would probably be ignorant”. Dixon, supra, at 703.

Contrary to the prosecutor’s suggestion, we do not rule that police are now required "to accept bail on the street”, but that arresting officers, following an external (but fruitless) pat-down for weapons, are obliged to inform a minor traffic offender of his statutory rights and upon arrival at the station house to accept bail (proffered by such a defendant or one acting on his behalf, Zehrung v State, supra, 569 P2d at 195) if no magistrate is readily available for an arraignment.

Accordingly, defendant’s conviction for possession of cocaine and carrying a weapon in an automobile are hereby vacated. His remaining convictions shall nonetheless stand affirmed. The matter is remanded for sentencing anew on the remaining charges.

J. H. Gillis, J.

(dissenting). I respectfully dissent. The majority’s opinion appears to contradict a long line of well-reasoned precedent and policy. Furthermore, it ignores the practicalities and intricacies of legitimate and effective law enforcement. Today’s holding severely limits an age-old exception to the search and seizure warrant requirement, the right to search incidental to a lawful arrest.

The majority opinion concludes that a police officer, after effectuating a full custodial arrest, may only "pat down” an arrestee in a search for weapons and fruits of the offense which resulted in the arrest.

The procedure set forth in the majority opinion is analogous to the procedure prescribed by the United States Supreme Court in "stop and frisk” cases.

However, the policy considerations underlying the search procedures to be employed by police officers in "stop and frisk” cases are readily distinguishable from the policy considerations to be weighed when analyzing search procedures in full custodial arrest cases.

’’Terry v Ohio, supra [392 US 1; 88 S Ct 1868; 20 L Ed 2d 889 (1968)], did not involve an arrest for probable cause, and it made quite clear that the 'protective frisk’ for weapons which it approved might be conducted without probable cause. Id., at 21-22, 24-25.

This Court’s opinion explicitly recognized that there is a ’distinction in purpose, character, and extent between a search incident to an arrest and a limited search for weapons. ’

" 'The former, although justified in part by the acknowledged necessity to protect the arresting officer from assault with a concealed weapon, Preston v United States, 376 US 364, 367 [84 S Ct 881; 11 L Ed 2d 777] (1964), is also justified on other grounds, ibid., and can therefore involve a relatively extensive exploration of the person. A search for weapons in the absence of probable cause to arrest, however, must, like any other search, be strictly circumscribed by the exigencies which justify its initiation. Warden v Hayden, 387 US 294, 310 [87 S Ct 1642; 18 L Ed 2d 782] (1967) (Mr. Justice Fortas, concurring). Thus it must be limited to that which is necessary for the discovery of weapons which might be used to harm the officer or others nearby, and may realistically be characterized as something less than a "full” search, even though it remains a serious intrusion.
" ' * * * An arrest is a wholly different kind of intrusion upon individual freedom from a limited search for weapons, and the interests each is designed to serve are likewise quite different. An arrest is the initial stage of a criminal prosecution. It is intended to vindicate society’s interest in having its laws obeyed, and it is inevitably accompanied by future interference with the individual’s freedom of movement, whether or not trial or conviction ultimately follows. The protective search for weapons, on the other hand, constitutes a brief, though far from inconsiderable intrusion upon the sanctity of the person.’ Id., at 25-26. (Footnote omitted.)
"Terry, therefore, affords no basis to carry over to a probable-cause arrest the limitations this Court placed on a stop-and-frisk search permissible without probable cause.” United States v Robinson, 414 US 218, 227-228; 94 S Ct 467; 38 L Ed 2d 427 (1973). (Emphasis supplied.)

The majority concludes that the State of Michigan via the interim bail statute, MCLA 780.581; MSA 28.872(1), has imposed greater restrictions on police activity than those deemed constitutionally necessary by the United States Supreme Court. The majority bases its opinion on the premise that the interim bail statute restricts a police officer to a "Terry-type” pat-down search after effectuating a full custodial arrest of an individual who is charged with a traffic violation.

The legislative policy underlying the interim bail statute is to avoid the "unwarranted and unnecessary inconvenience, embarrassment and risk attendant incarceration for a minor traffic offense”. People v Dixon, 392 Mich 691, 705-706; 222 NW2d 749 (1974). It does not circumvent the right of a police officer to guarantee his own safety by restricting his right to search an individual who is under full custodial arrest.

A police officer has every right to insure that the individual he has arrested does not possess any instrument which could be used as a weapon to harm the officer or effectuate an escape.

To support its presumption that the interim bail statute restricts a police officer’s ability to search incidental to a lawful arrest, the majority relies upon People v Dixon, 392 Mich 691; 222 NW2d 749 (1974).

However, the Dixon case, supra, is distinguishable from the case at bar. In Dixon, supra, there were two searches, one at the scene of the crime, and another at the station house. The latter search produced the evidence upon which Dixon was convicted. The Michigan Supreme Court concluded that the second search was in violation of Dixon’s statutory right to bail. MCLA 780.581; MSA 28.872(1). The Court reasoned that the second search was an inventory search which did not stem from the objective of protecting the arresting officer. Hence, there was no need to search Dixon unless he was to be incarcerated.

In the instant matter, the search in question was conducted at the scene of the crime by the arresting officer for his own protection. Therefore, the Dixon case is not applicable to the facts in the instant matter.

The majority, while recognizing this factual distinction, extends Dixon to cover the initial search incidental to an arrest in order "to shore up what would otherwise be a gaping loophole in the law”. I cannot condone what I perceive to be an improper extension of the Dixon case, supra.

It should be noted that the Dixon Court carefully distinguished the facts in that matter from the United States Supreme Court cases of United States v Robinson, supra, and Gustafson v Florida, 414 US 260; 94 S Ct 488; 38 L Ed 2d 456 (1973).

"Discovery of the heroin is not validated by the opinions of the United States Supreme Court in United States v Robinson, 414 US 218; 94 S Ct 467; 38 L Ed 2d 427 (1973), and Gustafson v Florida, 414 US 260; 94 S Ct 488; 38 L Ed 2d 456 (1973).
"The Court predicated the right to search there as an incident of the arrest and the need of the officer to protect himself.
"Dixon had already been searched for weapons before even entering the police car. The station house procedures were not intended nor could they be justiñed as a further search for either weapons or possible fruits of the crime. ” Dixon, supra, at 706. (Footnotes omitted; emphasis supplied.)

The Dixon Court restricted its holding so as to render it inapplicable to initial searches incidental to a lawful arrest. The majority’s abolition of this limitation disregards the fact that the Dixon Court carefully avoided issuing an opinion that conflicted with the holdings of the Robinson and Gustafson cases, supra.

Hence, the majority is attempting to extend the holding of the Dixon case to an area expressly avoided by the Dixon Court. Such an extension is unwarranted and is not supported by the interim bail statute or the Dixon case.

Therefore, I would deem the search conducted in the instant matter a valid exercise of a police officer's right to search without a warrant incidental to an arrest.

Accordingly, I would admit the contraband taken from defendant’s person into evidence and affirm his conviction.

       Defendant testified, and Officer Ibanez denied, that defendant identified himself to the officer.

       Produced at trial, Martinez testified on defense cross-examination that he had earlier planted two tinfoil packets of cocaine on defendant and later had secreted the gun under the seat while Officer Ibanez frisked defendant.

       In Robinson, the Supreme Court held: "The authority to search the person incident to a lawful custodial arrest, while based upon the need to disarm and to discover evidence, does not depend on what a court may later decide was the probability in a particular arrest situation that weapons or evidence would in fact be found upon the person of the suspect. A custodial arrest of a suspect based on probable cause is a reasonable intrusion under the Fourth Amendment; that intrusion being lawful, a search incident to the arrest requires no additional justification. It is the fact of the lawful arrest which establishes the authority to search, and we hold that in the case of a lawful custodial arrest a full search of the person is not only an exception to the warrant requirement of the Fourth Amendment, but is also a 'reasonable’ search under that Amendment.” 414 US at 235; 94 S Ct at 477; 38 L Ed 2d at 440-441. Accord, Gustafson v Florida, 414 US 260; 94 S Ct 488; 38 L Ed 2d 456 (1973).

       According to Officer Ibanez, defendant did not threaten him until after defendant had been placed in the backseat of the scout car.

       Since the search of Martinez and the three searches of the Pontiac avowedly were founded on the officer’s improper search and seizure of cocaine, we likewise require suppression of the gun found in the car. But the fruit-of-the-poisonous-tree doctrine cannot be used to condone death threats leveled against a police officer. Consequently, we leave intact defendant’s convictions on charges of extortion and subornation of perjury.

       Unlike a panel of this Court in People v Ridgeway, 74 Mich App 306, 314; 253 NW2d 743 (1977), we cannot hold that a defendant’s possession of a tinfoil packet ipso facto authorizes a search of the packet. Although controlled substances may at times be wrapped in foil, so may innumerable legitimate items.

       Although lacking a statutory counterpart to Michigan’s interim bail act, the Alaska Supreme Court in Zehrung v State, 569 P2d 189, 193 (1977), applied the "nonstatutory rationale” of People v Dixon, 392 Mich 691; 222 NW2d 749 (1974), to suppress evidence discovered in a warrantless, jailhouse inventory search.

        See United States v Lefkowitz, 285 US 452; 52 S Ct 420; 76 L Ed 877 (1932), Harris v United States, 331 US 145; 67 S Ct 1098; 91 L Ed 1399 (1947), Trupiano v United States, 334 US 699; 68 S Ct 1229; 92 L Ed 1663 (1948), United States v Rabinowitz, 339 US 56; 70 S Ct 430; 94 L Ed 653 (1950), Preston v United States, 376 US 364; 84 S Ct 881; 11 L Ed 2d 777 (1964), Chimel v California, 395 US 752; 89 S Ct 2034; 23 L Ed 2d 685 (1969).

       The majority holds that a police officer may only conduct a "Terrytype” pat-down search even though the individual is under full custodial arrest. In order for a police officer to conduct a more intensive search he must have further justification (probable cause) to believe that the person arrested possesses a weapon. Hence, where a police officer feels an item which he cannot identify, which is the case here, he is precluded from searching further unless he has probable cause to believe it is a weapon.

        See Terry v Ohio, 392 US 1; 88 S Ct 1868; 20 L Ed 2d 889 (1968). It should be noted that "Terry-type” searches are permitted incidental to an investigative stop based upon less than probable cause to arrest. In the instant matter we are dealing with a full custodial arrest.

       A state is free to adopt greater restrictions on police activity than those that the Supreme Court deems to be necessary in respect to Federal constitutional standards.

       This writer fails to see how the purpose of the interim bail statute is undermined by allowing a police officer to insure that an individual who is under full custodial arrest does not possess any weapon which might be used to harm the officer.


source: Caselaw Access Project

author: Per Curiam.

license: Public Domain

text:
    MERRITT v DETROIT MEMORIAL HOSPITAL
    1. Libel and Slander — Qualified Privilege — Public Interest— Publication — Defamatory Utterances — Damages—Interests Involved.
    Generally, a qualified privilege is recognized where the public interest in activities which presuppose frank communication on certain matters between persons standing in particular relationships to each other outweighs the damage to individuals of good faith but defamatory utterances relevant to the interests of those involved.
    2. Libel and Slander — Qualified Privilege — Publication—Bona Fide Communication — Interests of the Parties.
    A qualified privilege extends to all communications made bona fide upon any subject matter in which the party communicating has an interest, or in reference to which he has a duty to a person having a corresponding interest or duty, and the privilege embraces cases where the duty is not a legal one, but where it is of a moral or social character of imperfect obligation.
    3. Libel and Slander — Privilege—Definition.
    The term privilege relates to a situation or occasion in which the importance of the criticism published justifies a modification or indeed a withdrawal of the protection normally afforded to our citizens’ reputations.
    References for Points in Headnotes

       50 Am Jur 2d, Libel and Slander §§ 192, 195, 196.

       50 Am Jur 2d, Libel and Slander §§ 273, 274.

       50 Am Jur 2d, Libel and Slander §§ 167, 275.
    Libel and slander: Privileged nature of communication to other employees or employees’ union of reasons for plaintiff’s discharge. 60 ALR3d 1081.

       50 Am Jur 2d, Libel and Slander §§ 149, 194.

       4 Am Jur 2d, Appeal and Error § 76.
    Formal requirements of judgment or order as regards appealability. 73 ALR2d 250.

       50 Am Jur 2d, Libel and Slander §§ 193, 198.

      4. Libel and Slander — Master and Servant — Qualified Privilege —Interests of the Parties — Publication.
    An employer has a qualified privilege to defame an employee by publishing statements to other employees whose duties interest them in the subject of the publication.
    5. Libel and Slander — Master and Servant — Qualified Privilege —Employee Misconduct — Supervisory Personnel.
    Employees responsible for hiring and firing are entitled to hear accusations of employee misconduct which warrant dismissal and preclude rehiring; therefore, employees who are supervisors, personnel department representatives or company officials are those employees to whom an employer-defendant’s qualified privilege extends.
    6. Libel and Slander — Consent to Publication — Privilege.
    A communication regarding a person is absolutely privileged if the person consents to it.
    7. Appeal and Error — Clearly Erroneous Rule — Court Rules.
    A trial court’s finding of fact will not be set aside unless it is clearly erroneous (GCR 1963, 517.1).
    8. Libel and Slander — Privileged Communications — Good Faith Communications — False Communications.
    Absolutely privileged communications and qualifiedly privileged communications made in good faith do not lose their status even if the content of the communication is proved false.
    Appeal from Wayne, William J. Giovan, J.
    Submitted October 12, 1977, at Detroit.
    (Docket No. 29655.)
    Decided February 7, 1978.
    Complaint by Willie Merritt against Detroit Memorial Hospital for damages for libel and slander. Judgment for defendant. Plaintiff appeals.
    Affirmed.

      Rifkin, Schultz & Kingsley, P. C., for plaintiff.

      Dice, Sweeney, Sullivan & Feikens, P. C. and Clark, Klein, Winter, Parsons & Prewitt (by Fred W. Batten), for defendant.

      Before: D. E. Holbrook, P. J., and N. J. Kaufman and J. E. McDonald, JJ.

       Circuit judge, sitting on the Court of Appeals by assignment.

   Per Curiam.

Plaintiff appeals from an adverse judgment in her action for slander against her former employer, Detroit Memorial Hospital, entered by Wayne County Circuit Court Judge William J. Giovan.

From 1969, until June 1973, the plaintiff worked as a ward clerk for defendant hospital. On April 18, 1973, she was injured in an automobile accident. Her family physician treated plaintiff for two months, prescribing a muscle relaxant, pain killer, and other drugs for her. Plaintiff returned to work on June 18, 1973, when her supervisor, Mrs. J. McMackin, told her to report for her annual physical examination. As part of that examination, plaintiff furnished blood and urine samples.

On June 26, 1973, plaintiff attended a meeting with Mona Gay Harmon, director of personnel at defendant hospital, J. S. Blaine, executive director of personnel, plaintiff’s supervisor, Mrs. McMackin and Mrs. A. Ross, representing the American Federation of State, County and Municipal Employees. Blaine told plaintiff that there was a problem regarding the urine sample and asked her to obtain from her doctor a list of all medication he had prescribed for her during the previous six months.

That same day plaintiff secured a list of her medications from Dr. Long and hand-carried it to the nursing office at the hospital. The list mentions eight drugs; at that time plaintiff was taking two: Norflex, a skeletal-muscle relaxant and Phenaphen No. 4, which contains codeine. Dr. Long testified that neither Norflex nor Phenaphen No. 4 contained morphine sulphate, a controlled substance, and that nothing he prescribed contained that substance.

Another meeting was held, attended by Blaine, Harmon, Ross and the plaintiff. Blaine told defendant that the urinalysis revealed morphine sulphate. Shortly afterward, plaintiff received a letter from Harmon terminating her employment as of June 28 for the stated reason that plaintiff had violated a work rule forbidding "[a]ny activities regarding personal use or abuse of drugs”. Soon after, plaintiff filed this suit, charging defamation.

At trial, plaintiff testified to the above facts and related that after her dismissal, she applied to five hospitals and to an employment agency for work. As to Zieger Hospital, one of the five, plaintiff listed defendant hospital as her last employer and informed Zieger that she had been fired. However, plaintiff was less than certain on her testimony as to these events and it is sufficient to note that at trial plaintiff complained that defendant told "prospective employers that she was fired for violating a work rule”.

Additionally, plaintiff testified that despite the fact nobody knew about the reason for her firing except her mother and her boyfriend, friends from work also knew the reason. Plaintiff encountered Larry, a union steward, who stated in the presence of others, "I heard they let you go for dope”. She also testified that a Mr. Barnes, head of the union local, called her about the firing and knew the reason for it.

Some weeks after plaintiffs firing, her grievance was aired at a meeting attended by Blaine, Harmon, McMackin, a Mr. Pearson (an assistant administrator) and union representatives Barnes, Christine Jefferson, and Bonnie Davis. Blaine again said that plaintiff had been fired for drug abuse after morphine sulphate was found in her urine. Plaintiff signed a waiver form which stated: "I hereby authorize Detroit Memorial Hospital to release any and all Laboratory examinations and test results. I hereby waive legal privelege [sic] against release of this information to AFSCME Local #140.” Plaintiff claimed that the second sentence was not on the form when she signed it, but eventually admitted that she knew the purpose of the form was to release the results of the drug screening test to the union in connection with her grievance. At trial, the test results were admitted, over objection, under the business records exception to the hearsay rule.

The director of personnel at defendant hospital also testified. She stated that she was the only person handling requests for references concerning employees terminated at defendant hospital. She testified that the personnel director at Zieger Hospital inquired about plaintiff. She told the director that plaintiff had been terminated for violating a work rule and was not "rehireable”. Plaintiff’s folder was marked: "All requests for reference must be directed only to: Personnel director— DMH”.

After the close of all the evidence, the trial court made findings of fact and drew conclusions of law as follows:

(1) If defendant’s statements were untrue and not privileged, they would be defamatory, charging plaintiff with commission of a crime.

(2) Although further evidence of the reliability of the drug screening test would have been desirable, the preponderance of the evidence shows that plaintiff did use morphine. The test furnishes the evidence of this. The only evidence to the contrary was plaintiff’s denial, but because of plaintiff’s several deliberately false statements of material facts, the court chose to give her testimony no weight.

(3) Even if the statement were untrue, defendant’s communications to its employees, union officials, and other hospitals were clothed with a qualified privilege. Plaintiff herself published the reasons for her termination to Zieger Hospital; defendant could not have reasonably foreseen that she would do so.

On appeal, drawing from the trial court’s first and third findings, plaintiff argues that the defendant did not have a qualified privilege to publish the reason for plaintiff’s firing to supervisory personnel and to prospective employers. If a qualified privilege attached to those statements, the judgment for defendant hospital was correct. Bacon v Michigan Central R Co, 66 Mich 166; 33 NW 181(1887), Harrison v Arrow Metal Products Corp, 20 Mich App 590; 174 NW2d 875 (1969).

In general, a qualified privilege is recognized where the public interest in activities which presuppose frank communication on certain matters between persons standing in particular relationships to each other outweighs the damage to individuals of good faith but defamatory utterances relevant to the interests of those involved:

"The great underlying principle upon which the doctrine of privileged communications stands, is public policy. * * * Qualified privilege * * * extends to all communications made bona ñde upon any subject-matter in which the party communicating has an interest, or in reference to which he has a duty, to a person having a corresponding interest or duty. And the privilege embraces cases where the duty is not a legal one, but where it is of a moral or social character of imperfect obligation. [Citations omitted.]” Bacon v Michigan Central R Co, supra at169-170.
"The term privilege relates to a situation or occasion in which the importance of the criticism published justifies a modification or indeed a withdrawal of the protection normally afforded to our citizens’ reputations.” Harrison v Arrow Metal Products Corp, supra at 609.

An employer has a qualified privilege to defame an employee by publishing statements to other employees whose duties interest them in the subject. Cf. Carroll v Owen, 178 Mich 551; 146 NW 168 (1914). Employees responsible for hiring and firing are entitled to hear accusations of employee misconduct which warrant dismissal and preclude rehiring. Bacon v Michigan Central R Co, supra, Sias v General Motors Corp, 372 Mich 542; 127 NW2d 357 (1964), Poledna v Bendix Aviation Corp, 360 Mich 129; 103 NW2d 789 (1960).

In the present case, the employees who attended the June 26, 1973, meetings included plaintiff’s supervisor, the head of the hospital personnel office and his immediate subordinate. Thus, those employees were supervisors, personnel department representatives and company officials, see Sias v General Motors Corp, supra at 546-547, and as such, are those employees to whom defendant’s qualified privilege extends. The trial court did not err as to this issue.

As to plaintiff’s argument regarding publication to prospective employers, based on plaintiff’s own admissions on cross-examination, the trial court found that plaintiff concealed her previous employment at defendant hospital from the employers to whom she subsequently applied except Zieger Hospital. Since there was no communication of any sort from anyone to these employers concerning plaintiff’s employment with defendant, only Zieger need be considered.

The trial court found that plaintiff and no one else disclosed the reasons for her termination at defendant hospital to Zieger Hospital. A communication regarding a person is absolutely privileged if he consents to it. Schultz v Guldenstein, 144 Mich 636; 108 NW 96 (1906), Shinglemeyer v Wright, 124 Mich 230; 82 NW 887 (1900), Bonkowski v Arlan’s Department Store, 12 Mich App 88; 162 NW2d 347 (1968), Schechet v Kesten, 3 Mich App 126; 141 NW2d 641 (1966). A trial court’s finding of fact will "not be set aside unless clearly erroneous”, GCR 1963, 517.1. As we do not so find, the trial court did not err as to this issue.

Plaintiff also argues that defendant did not have an absolute or a qualified privilege to publish defamatory statements about an employee to union representatives during grievance proceedings held pursuant to a collective bargaining agreement. However, the trial court found that the union representative was present at each of the June 26 meetings "more or less as the agent of the plaintiff”. As plaintiff never objected, we cannot state that the finding was clearly erroneous. GCR 1963, 517.1. As such, plaintiff’s actions amount to the equivalent of consent. We therefore hold that the communication was absolutely privileged. Schultz, supra, Shinglemeyer, supra, Bonkowski, supra, Schechet, supra. The trial court did not err as to this issue.

To summarize, the communications to the union representative and Zieger Hospital were absolutely privileged and the communication to the supervisory personnel was qualifiedly privileged. Since all of the assailed communications were privileged, and since the trial court made a finding — undisputed on appeal — that all statements made by defendant hospital were made in good faith in reliance on the test results, it is not necessary to determine if the trial court erred in admitting the test results under the business records exception to the hearsay rule. Clearly, absolutely privileged communications and qualifiedly privileged communications made in good faith (as was the case here) do not lose their status if the content of the communication is indeed proved false. Thus, the admissibility (and impliedly the veracity) of the drug screening test is not a factor necessary to the disposition of the case.

Affirmed. Costs to appellees.

       For example, plaintiff denied furnishing her termination letters and related papers to Zieger when she applied there and denied asking defendant hospital for a reference but later admitted that she did ask the personnel office for a reference and did show the letter at Zieger.

       Although, on cross-examination, plaintiff admitted that only Zieger was informed of her employment at defendant hospital.


author: D. C. Riley, P. J. R. M. Maher, J.

text:
    PEOPLE v HOFFMAN
    Opinion of the Court
    1. Constitutional Law — Trial—Jury—Discharge—Acquittal— Consent — Express—Implied.
    Any discharge of a jury, after it has been impaneled and sworn, without sufficient cause operates as an acquittal in that it effectually bars another trial for the same offense; such discharge must have been made without the consent, express or implied, of the respondent in order to operate as an acquittal and bar another trial.
    2. Constitutional Law — Criminal Law — Double Jeopardy — Jury— Discharge — Silence—Waiver.
    A defendant’s silence could not operate as his consent to, or acquiescence in, a trial court’s dismissal of an impaneled and sworn jury where the record shows that defendant neither agreed nor dissented to the jury’s dismissal; the courts have, nonetheless, found consent if it was expressed by defendant’s counsel.
    3. Constitutional Law — Mistrials—Consent—Double Jeopardy— Defendant’s Personal Consent — Defendant’s Primary Control.
    Case precedent requires an express manifestation of consent to a mistrial either from the defendant or from his attorney to effectively eliminate the bar of double jeopardy where a mistrial is sought after a jury is impaneled and sworn; the absence of the defendant’s personal consent to a mistrial where the record shows a consent by counsel does not necessarily bespeak the absence of his primary control over the proceedings.

      References for Points in Headnotes

       21 Am Jur 2d, Criminal Law §§ 194, 195.
    76 Am Jur 2d, Trial § 1089.
    What constitutes accused consent to court to discharge of jury or to grant of state’s motion for mistrial which will constitute waiver of former jeopardy plea. 63 ALR2d 782.
    [2, 3, 6] 21 Am Jur 2d, Criminal Law §§ 194-196, 198, 204.

       16 Am Jur 2d, Constitutional Law §§ 58-100, 221.

       21 Am Jur 2d, Criminal Law §§ 165, 166, 209, 476.

      4. Constitutional Law — Courts—Interpretations.
    The fealty of the Court of Appeals is to the United States Supreme Court in matters of Federal constitutional interpretation.
    Concurrence by R. M. Maher, J.
    5. Constitutional Law — Double Jeopardy — Fundamental Rights— Waiver.

      The guarantee against double jeopardy is a fundamental right which can be waived only by the defendant himself.

    6. Constitutional Law — Double Jeopardy — Defendant’s Primary Control — Mistrials—Waiver—Record—Personal Manifestation.

      A defendant must do something positively in order to indicate that he is exercising primary control over the course to be followed and consents to a mistrial where such consent operates as a waiver of the protection against double jeopardy; primary control must reside in the defendant himself or personally; the record must disclose a personal manifestation by defendant that he consents to a waiver; it is not necessary that the record contain a statement by the defendant but it must be demonstrated that counsel has at least spoken with his client about the constitutional protection and añer such discussion defendant has made the decision to consent.

    Appeal from Ingham, Louis E. Coash, J.
    Submitted October 4, 1977, at Lansing.
    (Docket No. 30262.)
    Decided February 7, 1978.
    Leave to appeal applied for.
    Robert R. Hoffman was convicted of first-degree murder. Defendant appealed. Affirmed, 24 Mich App 244 (1970). Defendant applied for leave to appeal to the Supreme Court. Application denied, 383 Mich 820 (1970). Defendant filed a complaint for habeas corpus which the Court of Appeals treated as an application for delayed appeal and granted leave to appeal.
    Affirmed.

      Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, Peter D. Houk, Prosecuting Attorney, and Lee Wm. Atkinson, Chief Appellate Attorney, for the people.

      Paul E. Lincolnhol, for defendant on appeal.
    Before: D. C. Riley, P. J., and J. H. Gillis and R. M. Maher, JJ.
   D. C. Riley, P. J.

Defendant appeals, by leave granted, his 1964 conviction of first-degree murder and corresponding sentence of life imprisonment. We affirm.

I

Charged with murdering his ex-wife, defendant first came to trial in February, 1964. During the trial, the court, for reasons unexplained by the present record, excluded a Reverend Schuurmans as a defense witness. Later, during defense examination of witness Geraldine Wilson, defendant’s sister, Reverend Schuurmans became the subject of discussion:

"Q. [MR. KEYWORTH, DEFENSE ATTORNEY] Now, you say you talked with other people. Did you and any other member of your family make an effort to get outside help other than the ones that we have discussed here?
"A. Yes, we did.
"Q. And where did you try to seek help?
"A. I went to Reverend Schuurmans and he went to the Prosecutor’s office.”

At that point the prosecutor objected, sought and secured the jury’s removal, and then requested a mistrial "based on the actions of this witness in injecting evidence that is absolutely immaterial, irrelevant, and incompetent, and which has been formally excluded by this court in her presence, and I ask that she be cited for contempt”.

While defendant’s other attorney, Benjamin Watson, originally seemed to resist the motion for mistrial, his views changed following an in-chambers conference with the trial judge:

"THE COURT: All right. I understand you have something to say, Mr. Watson?
"MR. WATSON: I did tell the court informally in chambers that we would not oppose the Prosecutor’s motion, and indeed would concur in it.
"We deplore the incident that led to the making of the motion. We do not think it is as serious as Mr. Farhat [the prosecuting attorney] seems to think. But if he feels the way he does about it, why, we would not challenge his right to make the motion and we would concur in it.
"THE COURT: Do you have anything to say at this time, Mr. Farhat?
"MR. FARHAT: No.
"THE COURT: All right. Inasmuch as both sides have made a motion for a mistrial, the court is going to grant it.”

Upon the jury’s return to the courtroom, the judge informed them of his ruling:

"THE COURT: Ladies and gentlemen of the jury: You were asked to leave the courtroom just a few minutes ago before this court took a recess, or asked you to leave.
"During your absence a motion was made by the Prosecuting Attorney that the court declare a mistrial in this case. A mistrial means that the case is ended.
"That motion was concurred in by Mr. Watson and Mr. Keyworth, the attorneys for the defendant, and the motion was granted.”

Later retried and convicted, defendant unsuccessfully pursued appellate relief. People v Hoffman, 24 Mich App 244; 180 NW2d 99 (1970), lv den, 383 Mich 820 (1970).

On January 14, 1977, a panel of this Court, in response to defendant’s complaint for habeas corpus, treated the matter as an application for delayed appeal and granted same.

II

Defendant’s renewed attack on his conviction relies entirely on the double jeopardy clauses of the state and Federal constitutions. Const 1963, art 1, § 15 and US Const, Am V. Citing People v Alvin Johnson, 396 Mich 424; 240 NW2d 729 (1976), and People v Gardner, 37 Mich App 520; 195 NW2d 62 (1972), he argues initially that manifest necessity did not require the trial court’s declaration of a mistrial. We agree. The error, if any, in witness Wilson’s isolated comment regarding Reverend Schuurmans’ visit to the prosecutor —a non-responsive answer to a proper question by defense counsel — could have been cured by a cautionary instruction. See People v Kelsey, 303 Mich 715, 717; 7 NW2d 120 (1942). If a single reference to a polygraph test does not compel the granting of a mistrial, Alvin Johnson, supra, at 437, witness Wilson’s brief remark clearly did not merit such drastic action.

Ill

Defendant also maintains that Alvin Johnson, supra, requires a showing either that defendant personally consented to the mistrial or that he exerted primary control in the decision to accede to the prosecutor’s mistrial motion. Claiming that the record satisfies neither requirement, he seeks release from confinement on grounds of double jeopardy.

Alvin Johnson, a case where neither defendant nor his counsel requested or consented to a mistrial, ostensively derived its holding from United States v Dinitz, 424 US 600; 96 S Ct 1075; 47 L Ed 2d 267 (1976).

In Dinitz, three attorneys, Messrs. Wagner, Mel-don and Baldwin, represented defendant. During the opening statement (conducted by Wagner), the trial court ejected Wagner from the courtroom for obstreperous conduct, but allowed defendant’s other counsel to remain.

"The next morning, Meldon told the judge that the respondent wanted Wagner and not himself or Baldwin to try the case. The judge then set forth three alternative courses that might be followed — (1) a stay or recess pending application to the Court of Appeals to review the propriety of expelling Wagner, (2) continuation of the trial with Meldon and Baldwin as counsel, or (3) a declaration of a mistrial which would permit the respondent to obtain other counsel. Following a short recess, Meldon moved for a mistrial, stating that, after 'full consideration of the situation and an explanation of the alternatives before him, [the respondent] feels that he would move for a mistrial and that this would be in his best interest.’ * * * The Government prosecutor did not oppose the motion. The judge thereupon declared a mistrial, expressing his belief that such a course would serve the interest of justice.” 424 US at 604-605; 96 S Ct at 1078; 47 L Ed 2d at 272.

In reversing the Fifth Circuit Court of Appeals, which had accepted Dinitz’s double jeopardy claims, the Supreme Court observed:

"The Court of Appeals viewed the doctrine that permits a retrial following a mistrial sought by the defendant as resting on a waiver theory. The court concluded, therefore, that 'something more substantial than a Hobson’s choice’ is required before a defendant can 'be said to have relinquished voluntarily his right to proceed before the first jury.’ See 492 F2d, at 59. The court thus held that no waiver could be imputed to the respondent because the trial judge’s action in excluding Wagner left the respondent with 'no choice but to move for or accept a mistrial.’ Ibid. But traditional waiver concepts have little relevance where the defendant must determine whether or not to request or consent to a mistrial in response to judicial or prosecutorial error. See United States v Jorn, 400 US 470, 484-485, n 11; [91 S Ct 547; 27 L Ed 2d 543 (1971)], United States v Jamison, 164 US App DC 300, 305-306; 505 F2d 407, 412-413 (1974). In such circumstances, the defendant generally does face a 'Hobson’s choice’ between giving up his first jury and continuing a trial tainted by prejudicial judicial or prosecutorial error. The important consideration, for purposes of the Double Jeopardy Clause, is that the defendant retain primary control over the course to be followed in the event of such error.

424 US at 608-610; 96 S Ct at 1080-1081; 47 L Ed 2d at 274-275. (Footnote 10 omitted; emphasis supplied.)

The Alvin Johnson Court, in apparent obeisance to the rule espoused in Dinitz, supra, opined:

"[E]ven where the mistrial was improperly declared, it is not a bar to retrial if the action was taken with defendant’s consent. State v Fenton, 19 Ariz App 274, 276; 506 P2d 665, 667 (1973).
"Mere silence or failure to object to the jury’s discharge is not such consent, 19 Ariz App 274, 276; 506 P2d 665, 667.
"In a very recent case in which defense counsel himself requested a mistrial, the United States Supreme Court has addressed this point as follows:
'The important consideration, for purposes of the Double Jeopardy Clause, is that the defendant retains primary control over the course to be followed * * * ’, United States v Dinitz, 424 US 600, 609; 96 S Ct 1075, 1081; 47 L Ed 2d 267, 275 (1976), and the defendant must therefore do something positively in order to indicate he or she is exercising that primary control. Further,
" 'The circumstance that it is defense counsel who initiates the court’s inquiry into a matter which ultimately results in an order of mistrial does not ipso facto transform counsel’s expression of concern into an implied consent to such drastic ruling.’ People v Compton, 6 Cal 3d 55, 62; 98 Cal Rptr 217, 221; 490 P2d 537, 541 (1971).
" '[A]n appellate court’s assessment of which side benefited from the mistrial ruling does not adequately satisfy the policies underpinning the double jeopardy provision’ United States v Jorn, 400 US 470, 483; 91 S Ct 547; 27 L Ed 2d 543 (1971). Thus, in the absence of bright-line rules deliberately eschewed by the United States Supreme Court, 400 US 470, 486, we must first look to whether in the exercise of that control of the course of his own trial, highlighted by Dinitz, defendant Alvin Johnson approved termination of the proceedings.
"It is not difficult to require a trial court to inquire whether defendant consents. Therefore, in the absence of an affirmative showing on the record, this Court will not presume to find such consent.
"There was no such affirmative showing in this case. At best, defense counsel may be said to have been silent. At worst, he did not protest, but he did not assent. Therefore, we find that defendant did not personally consent to the end of the first trial.” 396 Mich at 432-433 (Emphasis added.)

The foregoing extract from Alvin Johnson is susceptible of two, very different interpretations, one of which doubtless accords with defendant’s contention on appeal. To require, however, that "the defendant must * * * do something positively in order to indicate he or she is exercising * * * primary control” over the proceedings is to disregard settled precedent:

"After a jury has been impaneled and sworn, any discharge thereof without sufficient cause operates as an acquittal, in that it effectually bars another trial for the same offense. But to have this operation and effect such discharge must have been made without the consent, express or implied, of the respondent.” People v Gardner, 62 Mich 307, 311; 29 NW 19 (1886). (Emphasis added.)

Similarly, see People v White, 68 Mich 648, 654; 37 NW 34 (1888). Indeed, People v Carlton Brown, 23 Mich App 528, 534; 179 NW2d 58 (1970), quoted approvingly, if selectively, in Alvin Johnson, appears to dispute defendant’s double-jeopardy analysis:

"We are also confronted with the issue of whether this defendant [i.e., Carlton Brown] consented or acquiesced in the dismissal of the jury. The transcript shows that defendant Grimmett’s counsel made the original motion to allow his client to plead guilty of second-degree murder. Defendant Johnson’s attorney is on record as agreeing with some points. At no point does the record show that counsel for this defendant [i.e., Carlton Brown] said anything, either in agreement or dissent. Silence cannot operate against a defendant.” 23 Mich App at 534. (Emphasis added.)

Moreover, the decisions cited in Alvin Johnson to show that mere silence cannot be equated with defendant’s consent would appear nonetheless to find such consent if expressed by counsel. See, e.g., Commonwealth v Baker, 413 Pa 105, 115; 196 A2d 382, 387 (1964) ("[M]ere silence by defendant or his counsel to the proposed discharge * * * will not amount to a waiver [of double jeopardy]” [emphasis added]) and Curry v Superior Court, 2 Cal 3d 707, 713; 87 Cal Rptr 361, 364; 470 P2d 345, 348 (1970) C'[a]t no time did petitioners, in person or through counsel, expressly consent to the granting of the mistrial” [emphasis added]). In addition, these decisions speak in terms of "waiver” of the double-jeopardy protections — an interpretation subsequently disapproved in Dinitz, supra, at 609-610, fn 11. See also Alvin Johnson, 396 Mich at 431, fn 4.

In light of our recognition that neither defendant nor counsel in Alvin Johnson expressly assented to the mistrial, we interpret the ambiguous language of that case to require an express manifestation of consent either from defendant or from his attorney. Thus, since defendant Hoffman’s two attorneys concurred in the prosecution’s motion for mistrial, their actions on defendant’s behalf effectively eliminated the bar of double jeopardy.

To the extent this holding is interpreted as misreading Alvin Johnson and thereby disregarding our role in the judicial hierarchy and the rule of stare decisis, we note that in matters of Federal constitutional interpretation our fealty is to the United States Supreme Court. See People v Martin, 78 Mich App 518; 260 NW2d 869 (1977).

Although we, of course, encourage trial courts to elicit a defendant’s express consent to a mistrial, we do not believe that the absence of defendant’s personal consent necessarily bespeaks the absence of his primary control over the proceedings.

Affirmed.

J. H. Gillis, J., concurred.

R. M. Maher, J.

(concurring). I agree with the result reached by the majority in this case but cannot agree with the analysis by which it reaches that result. The majority’s attack on People v Alvin Johnson, 396 Mich 424; 240 NW2d 729 (1976), the Michigan case which construes United States v Dinitz, 424 US 600; 96 S Ct 1075; 47 L Ed 2d 267 (1976), is unwarranted.

I believe Alvin Johnson correctly interprets Dinitz to require something more than a defendant’s attorney’s acquiescence to a waiver of double jeopardy. Dinitz states,

"The important consideration, for purposes of the Double Jeopardy Clause, is that the defendant retain primary control over the course to be followed in the event of such error.” 424 US at 609.

Alvin Johnson, interpreting that language, holds:

"[T]he defendant must therefore do something positively in order to indicate he or she is exercising that primary control.” 396 Mich at 432-433.

The guarantee against double jeopardy is a fundamental right. Benton v Maryland, 395 US 784; 89 S Ct 2056; 23 L Ed 2d 707 (1969), People v Cooper, 398 Mich 450; 247 NW2d 866 (1976). As Alvin Johnson correctly observed, it is a right which defendant himself or herself must waive.

Arguably, the "knowing, voluntary and intelligent” waiver concept is not applicable in Michigan because of the footnote in Dinitz which states that the Supreme Court rejects the concept. I can only note, however, that after Dinitz and after Alvin Johnson, our Supreme Court, in People v Cooper, supra, chose to use a waiver analysis to permit appellate consideration of a double jeopardy claim. The majority calls this analysis mistaken because of the Dinitz footnote. But it may also be viewed as a reflection of Michigan law in an area in which that law is beginning to vary from its Federal counterpart. Such action by our Supreme Court is not without precedent. See, for example, People v Beavers, 393 Mich 554; 227 NW2d 511 (1975).

But whether the analysis be traditional waiver or not, Alvin Johnson and Dinitz do require that defendant have primary control over the course to be followed. I believe that primary control must reside in the defendant himself or herself, or, as Alvin Johnson says, personally. The record must disclose a personal manifestation by defendant that she or he consents to a waiver of the protection against double jeopardy. It is not necessary, though it is commendable, that the record contain a statement by the defendant; but it must be demonstrated that counsel has at least spoken with his or her client about the constitutional protection and that after such discussion defendant has made the decision to consent.

The passages quoted at length by the majority are equally supportive of our respective positions. Only the supplied emphasis is different. Indeed, that Alvin Johnson uses the term "defense counsel” is not inconsistent with the view that a defendant’s attorney can, in a sense, waive a defendant’s right, as long as counsel affirmatively indicates on the record that the defendant has had the primary control in the double jeopardy decision.

The majority’s references to "settled precedent,” i.e., its references to People v Gardner, 62 Mich 307; 29 NW 19 (1886), People v White, 68 Mich 648; 37 NW 34 (1888), People v Carlton Brown, 23 Mich App 528; 179 NW2d 58 (1970), I find both unenlightening and unpersuasive.

Alvin Johnson represents a discernible modification of prior case law. "Settled precedent” is, therefore, of limited value.' Even so, I do not agree that Alvin Johnson disregards settled precedent. The majority quotes People v Gardner, supra, on this point. Gardner states:

"But to have this operation and effect such discharge must have been made without the consent, express or implied, of the respondent.” 62 Mich at 311. (Emphasis supplied by majority.)

Alvin Johnson, rather than disregarding the Gardner language, actually expands upon the concept of "implied” used there, by requiring that an implied consent, i.e., one made by counsel for his or her client, be the result of a procedure in which defendant had primary control. The only effective way to ensure that defendant has primary control is for defendant himself or herself to consent on the record or for defendant’s counsel to establish on the record that the decision to consent was the outcome of a process over which defendant had primary control.

From the record in this case I am led to believe, assuming but not deciding the retroactivity of Alvin Johnson, that defendant had the requisite primary control. Accordingly, I concur.

       The record does not reveal whether defendant, the prosecutor or attorney Keyworth were present during the in-chambers conference.

       "The scope of the law of jeopardy is apparently the same under both the Michigan and United States Constitutions. In re Ascher, 130 Mich 540, 545; 90 NW 418; 57 LRA 806 (1902).” People v Alvin Johnson, 396 Mich 424, 430, fn 2; 240 NW2d 729 (1976). United States Supreme Court interpretations of the Federal double-jeopardy clause are binding upon the states. Benton v Maryland, 395 US 784; 89 S Ct 2056; 23 L Ed 2d 707 (1969), Alvin Johnson, supra, p 430, fn 1.

      "11. The respondent characterizes a defendant’s mistrial motion as a waiver of 'his right not to be placed twice in jeopardy’ and argues that to be valid the waiver must meet the knowing, intelligent, and voluntary standard set forth in Johnson v Zerbst, 304 US 458; [58 S Ct 1019; 82 L Ed 1461; 146 ALR 357 (1938)]. This approach erroneously treats the defendant’s interest in going forward before the first jury as a constitutional right comparable to the right to counsel. It fails to recognize that the protection against the burden of multiple prosecutions underlying the constitutional prohibition against double jeopardy may be served by a mistrial declaration and the concomitant relinquishment of the opportunity to obtain a verdict from the first jury. This Court has implicitly rejected the contention that the permissibility of a retrial following a mistrial or a reversal of a conviction on appeal depends on a knowing, voluntary, and intelligent waiver of a constitutional right. See Breed v Jones 421 US 519, 534; [95 S Ct 1779; 44 L Ed 2d 346 (1975)], United States v Wilson, 420 US 332, 343-344, n 11; [95 S Ct 1013; 43 L Ed 2d 232 (1975)], United States v Jorn, 400 US 470, 484-485, n 11; [91 S Ct 547; 27 L Ed 2d 543 (1971)] (plurality opinion), United States v Tateo, 377 US 463, 466 [84 S Ct 1587; 12 L Ed 2d 448 (1964)].”

      "7 Accord, Commonwealth v Baker, 413 Pa 105, 115; 196 A2d 382, 387 (1964); Curry v Superior Court, 2 Cal 3d 707, 713; 87 Cal Rptr 361, 364; 470 P2d 345, 348 (1970).

        "See also, People v Carlton Brown, 23 Mich App 528, 534; 179 NW2d 58 (1970).
      " 'Silence cannot operate against a defendant.’

        "Contra, Coppage v State, 62 Okla Cr 325, 335; 71 P2d 509, 513 (1937).

       In People v Cooper, 398 Mich 450, 455; 247 NW2d 866 (1976), the Supreme Court, despite its prior recognition that " 'the permissibility of a retrial following a mistrial’ [no longer] depends on waiver”, Alvin Johnson, supra, at 431, fn 4, nevertheless perpetuated a mistaken, "waiver” analysis to permit appellate consideration of a double-jeopardy claim.

         This author acknowledges the position taken in People v Flans-burgh, 71 Mich App 1, 7, fn 2; 246 NW2d 360 (1976). To the extent it fails to discern the misapplication of Dinitz that occurred in Alvin Johnson, the Flansburgh footnote no longer reflects this writer’s views.

       "While it may not be difficult to inquire [whether defendant consents to a mistrial], the unanswered question [in Alvin Johnson] is why the double jeopardy clause, as a matter of constitutional law, should require such a procedure.” Grano, 1976 Annual Survey of Michigan Law: Criminal Procedure, 23 Wayne L Rev 517, 589 (1977).

       The recently released People v Benton, 402 Mich 47, 55; 260 NW2d 77 (1977), (Opinion of Levin, J.), in no way disparages the present holding: "In the instant case, there is no indication that Benton or his counsel consented to a mistrial and there is substantial evidence that his counsel objected.” (Emphasis added.) Indeed, the cases there cited for the proposition that "[defendant's silence or failure to object to a declaration of mistrial does not constitute the requisite affirmative showing on the record”, Id. at fn 6, appears to support our resolution. See especially, People v Grimmett, 388 Mich 590, 601, fn 6; 202 NW2d 278 (1972). Moreover, we have no doubt that Justices Fitzgerald, Coleman and Ryan, employing a totality-of-the-circumstances test, People v Alvin Johnson, 396 Mich 424, 451; 240 NW2d 729 (1976) (Coleman, J., dissenting), would find primary control on the present record.

       To demonstrate that a change in supplied emphasis sustains an interpretation contrary to that urged by the majority, consider the following:
      "In a very recent case in which defense counsel himself requested a mistrial, the United States Supreme Court has addre'ssed this point as follows:
      " 'The important consideration, for purposes of the Double Jeopardy Clause, is that the defendant retains primary control over the course to be followed * * * ’, United States v Dinitz, 424 US 600, 609; 96 S Ct 1075, 1081; 47 L Ed 2d 267, 275 (1976), and the defendant must therefore do something positively in order to indicate he or she is exercising that primary control. Further,
      " 'The circumstance that it is defense counsel who initiates the court’s inquiry into a matter which ultimately results in an order of mistrial does not ipso facto transform counsel’s expression of concern into an implied consent to such drastic ruling.’ People v Compton, 6 Cal 3d 55, 62; 98 Cal Rptr 217, 221; 490 P2d 537, 541 (1971).
      " '[A]n appellate court’s assessment of which side benefited from the mistrial ruling does not adequately satisfy the policies underpinning the double jeopardy provision’, United States v Jorn, 400 US 470, 483; 91 S Ct 547; 27 L Ed 2d 543 (1971). Thus, in the absence of bright-line rules deliberately eschewed by the United States Supreme Court, 400 US 470, 486, we must Srst look to whether in the exercise of that control of the course of his own trial, highlighted by Dinitz, defendant Alvin Johnson approved termination of the proceedings.

      "It is not difficult to require a trial court to inquire whether defendant consents. Therefore, in the absence of an affirmative showing on the record, this Court will not presume to find such consent.
      "There was no such affirmative showing in this case. At best, defense counsel may be said to have been silent. At worst, he did not protest, but he did not assent. Therefore, we find that defendant did not personally consent to the end of the first trial. However, the finding of manifest necessity would still make the second trial permissible.” 396 Mich at 432-433. (Emphasis supplied.)


text:
    PEOPLE v RADNEY
    1. Criminal Law — Probation Revocation — Notice—Right to Contest — Charges—Right to an Attorney.
    The questions of whether a defendant was given timely notice of the charges he was to face at a probation revocation hearing and whether he was adequately informed of his rights to contest rather than admit the charges were adequately raised on appeal where defendant states in his brief that "the only information the defendant had was that of a notice of violation and that he had a right to an attorney; he was also asked if he had any answer to the charge to which he replied 'No’ ” and where defendant alleges that the probation revocation was "without any of the procedure safeguards necessary for due process”.
    2. Criminal Law — Probation Revocation — Notice—Timely Service of Notice — Statutes.
    Written notice to a defendant of charged probation violations is statutorily required; such notice must be served sufficiently in advance of scheduled court proceedings so that the defendant has a reasonable opportunity to prepare (MCLA 771.4; MSA 28.1134.)
    3. Criminal Law — Probation Revocation — Notice—Timely Service of Notice.
    A defendant charged with violation of the terms of his probation was not served with timely notice of the violation where the probation revocation hearing was held forthwith after the defendant received a written notice of violation.
    4. Criminal Law — Probation Revocation — Hearing—Notice-Waiver — Right to Contest Charges.
    It is necessary that a defendant charged with probation violation be informed of his right to a hearing and that he has an alternative to admitting the violations before he may validly waive a hearing on the charges and admit a violation of his probation; that requirement was not met where neither the form language on the notice of violation nor the court’s mention of the word "hearing” in its colloquy with the defendant sufficiently apprised the defendant of his right to contest the charges.

      References for Points in Headnotes
    [1 — 5] 21 Am Jur 2d, Criminal Law §§ 567, 568.
    Right to notice and hearing before revocation of suspension of sentence, parole, conditional pardon, or probation. 29 ALR2d 1074.

      5. Criminal Law — Probation Revocation — Hearing—Waiver.
    A statement of a defendant charged with probation violation that he has no answer to the charges of probation violation is not a sufficient indication that the defendant wishes to waive his probation revocation hearing.
    Appeal from Recorder’s Court of Detroit, George W. Crockett, Jr., J.
    Submitted November 15, 1977, at Detroit.
    (Docket No. 30507.)
    Decided February 7, 1978.
    Roosevelt Radney, Jr., was convicted, on his plea of guilty, of attempted breaking and entering with intent to commit larceny and attempted obtaining money under false pretenses, and was placed on probation. Defendant’s probation was revoked and defendant was sentenced to jail. Defendant appeals.
    Reversed and remanded.

      Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, William L. Cahalan, Prosecuting Attorney, Edward R. Wilson, Principal Attorney, Appeals, and E. Gail Willhardt, Assistant Prosecuting Attorney, for the people.

      John C. Mouradian, for defendant on appeal.
    Before: Bronson, P. J., and Allen and T. M. Burns, JJ.
   Per Curiam.

Defendant was placed on probation after having pled guilty to attempted breaking and entering with intent to commit larceny, MCLA 750.110; MSA 28.305, and attempted obtaining money under false pretenses, MCLA 750.218; MSA 28.415. No appeal was taken from those convictions. Subsequently, defendant’s probation was revoked in both cases and defendant was sentenced to serve concurrent two to five year terms.

Most of the issues on appeal, as framed by defendant, have no application to the facts of this case. There were no "contested issues” below. See, People v Rial, 399 Mich 431; 249 NW2d 114 (1976). However, defendant does state in his brief:

"The only information the Defendant had was that of a notice of violation and that he had a right to an attorney; he was also asked if he had any answer to the charge to which he replied 'No’.
"The violation of probation hearing in this case amounts to merely giving a notice of violation to the Defendant and then revoking probation without any of the procedural safeguards necessary for due process.”

We believe this adequately raises the questions of whether defendant was given timely notice of the charges he was to face at the hearing and whether he was adequately informed of his right to contest, rather than admit, the charges.

The record shows that defendant was served with notice of violations on June 29, 1976, and appeared before the court for arraignment on those charges on the same date. Defendant appeared without an attorney. A hearing was held "forthwith” resulting in immediate revocation of probation and sentencing.

The substance of the hearing is shown by this exchange:

"THE COURT: Among other things, evidently you were ordered to go to Harbor Light, and you entered there and you left without permission.
"You have had another conviction, I understand, since you were placed on probation. You were convicted before Judge Brezner; is that right?
"THE DEFENDANT: Yes, your Honor.
"THE COURT: Each of those things would be a violation of your probation.
"Since you were convicted of a felony, Mr. Radney, you’re entitled to have a lawyer represent you at the violation hearing, and if you are unable to pay for a lawyer, we will appoint a lawyer at public expense. Do you understand that?
"THE DEFENDANT: Yes, your Honor.
"THE COURT: Did you want a lawyer?
"THE DEFENDANT: No, I don’t. „
"THE COURT: Very well. Have you got any answer you want to make to these charges?
"THE DEFENDANT: No, your Honor, I don’t.”

The only proof that there was a violation was the probation officer’s statement to the court. Defendant made no comment in relation to the charged violations other than that noted above.

Our cases make it clear that the written notice of charged violations which is statutorily required, MCLA 771.4; MSA 28.1134, must be served sufficiently in advance of scheduled court proceedings so that defendant has a reasonable opportunity to prepare. People v Gulley, 66 Mich App 112; 238 NW2d 421 (1975), lv den, 396 Mich 850 (1976), People v Bell, 67 Mich App 351; 241 NW2d 203 (1976), lv den, 397 Mich 807 (1976), People v Gillman, 71 Mich App 374; 248 NW2d 553 (1976).

In this case defendant received a written notice of violation on June 29, 1976, and the hearing was held forthwith. This was not timely service of the notice. However, because it could be considered that defendant waived timely service, we would not reverse on this ground alone. But see, People v Bell, supra, at 355 (opinion of Danhof, P. J.).

A more fundamental error appears in this record. Before a defendant may validly waive a hearing on the charges and admit a violation of his probation it is necessary that he be informed of his right to a hearing and that there is an alternative to admitting the violations. People v Rial, supra, at 440 (Levin, J., concurring), People v Hardin, 70 Mich App 204; 245 NW2d 566 (1976), People v Allen, 71 Mich App 465; 248 NW2d 588 (1976), People v Michael Brown, 72 Mich App 7; 248 NW2d 695 (1976). That requirement has not been met on this record. Neither the form language on the notice of violations nor the court’s mention of the word "hearing” in its colloquy with the defendant sufficiently apprises defendant of his right to contest the charges. People v Darrell, 72 Mich App 710, 714; 250 NW2d 751 (1976) (Bronson, J., dissenting), People v Gaudett, 77 Mich App 496; 258 NW2d 535 (1977).

Defendant is entitled to another revocation hearing at which he is adequately informed of his right to contest the charges if he wishes to do so. We also note that this record does not show that defendant had, in fact, admitted the charged violations. Defendant stated only that he had no answer to the charges. This is not a sufficient indication that defendant wishes to waive his revocation hearing. People v Allen, supra, People v Coleman, 74 Mich App 498; 255 NW2d 203 (1977).

Reversed and remanded.

       The prosecutor admits on appeal that the “conviction” referred to by the court at the revocation proceeding was, in fact, not a conviction but rather, a pending charge which has subsequently been dismissed.