
39 Mich. App. 506 (1972)
197 N.W.2d 903
PEOPLE
v.
JEFFRIES
Docket No. 10796.
Michigan Court of Appeals.
Decided March 27, 1972.
Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, Donald A. Burge, Prosecuting Attorney, and Robert L. Pangle, Chief Appellate Attorney, for the people.
Richard J. Howard, for defendant on appeal.
Before: FITZGERALD, P.J., and R.B. BURNS and TARGONSKI,[*] JJ.
FITZGERALD, P.J.
On the evening of October 11, 1969, a police officer for the City of Kalamazoo was approached by an unidentified male and told that an individual by the name of Robert L. Jeffries was waving a pistol around in a nearby cafe. He and another officer then proceeded to enter the cafe where they observed an individual fitting the description as related by the unknown informant. The suspect then proceeded to leave the bar and walk down the street and the two police officers who had followed him, asked him to stop and identify himself. The suspect identified himself as Robert Jeffries.
*510 When asked if he was carrying a pistol, the defendant answered, "Yes, sir, I have a gun. I don't have papers for it. A colored fellow gave it to me at McKerring's". The suspect then started to reach into his left hand pocket and the police officer stopped him and removed from the pocket a small caliber pistol. The suspect was then arrested and read his Miranda rights.
Prior to trial, the defendant made a motion to suppress his statement that he did possess a gun, and also to suppress the pistol itself. The defendant contended that these pieces of evidence were the result of an illegal search and seizure. The judge denied the motion to suppress.
On October 14, 1970, the defendant was tried on a charge of carrying a concealed weapon.[1] The judge, sitting as trier of fact, found the defendant guilty, and sentenced him to two years probation.
On appeal, defendant contends that his conviction was obtained through the use of illegally obtained evidence, arguing that when the police officers stopped him, he was under arrest. He theorizes that at that point, he was so substantially deprived of his liberty that it was an in-custody interrogation and since he was not given his Miranda rights, the statement he made referring to possession of a gun should have been suppressed.
Defendant also claims that because the above-mentioned statement could not be used, the police officers did not have probable cause to stop him and make a search and an arrest. As a result, he says, the gun found was illegally obtained evidence and under the rule of Mapp v Ohio, 367 US 643; 81 S Ct 1684; 6 L Ed 2d 1081 (1961), the evidence should have been suppressed.
*511 Defendant further argues that the case of Terry v Ohio, 392 US 1; 88 S Ct 1868; 20 L Ed 2d 889 (1968), should not apply in that the facts of the present case show that the police officers were motivated by a desire to seek evidence rather than by any fear for their own protection.
The defendant's contention that this is an in-custody interrogation cannot be sustained. Miranda v Arizona, 384 US 436, 439; 86 S Ct 1602, 1609; 16 L Ed 2d 694, 704 (1966), specifically states that "we deal with the admissibility of statements obtained from an individual who is subjected to custodial police interrogation". Further on in the case, the Court announced that:
"General on the scene questioning as to facts surrounding a crime or other general questioning of citizens in the fact finding process is not affected by our holding." 384 US at 477; 86 S Ct at 1629; 16 L Ed 2d at 725.
In the case at hand, the police officers merely asked the defendant to stop. He was only asked one question, and the answer was readily given to the police officers. Neither officer had his gun drawn nor made any threatening gestures.
Under the above facts, it is clear that the defendant was not substantially deprived of his freedom of action, nor was he threatened or coerced into making any kind of a statement; therefore, it should be found that the defendant's statement was voluntarily given and properly admitted into evidence.
As to the defendant's contention that the search was illegal, this also cannot be sustained. The case of Terry v Ohio, supra, authorizes police officers to stop and frisk an individual when they are conducting legitimate investigations of suspicious circumstances, and where the officers reasonably fear for *512 their safety. The officers had reasonable suspicion to frisk the defendant. The police conduct in this case cannot be grounds for reversal.
The case of Orozco v Texas, 394 US 324; 89 S Ct 1095; 22 L Ed 2d 311 (1969), relied on by defendant is not analogous. The fact that the Orozco case followed a shooting and related to subsequent investigations removes it from serious consideration as controlling precedent in the instant case.
Affirmed.
R.B. BURNS, J., concurred.
TARGONSKI, J. (dissenting).
For the purposes of this dissent we can and we do adopt the statement of facts and the theories of the defendant as presented in the majority opinion.
The majority makes no reference to one factual matter which we add into our consideration of this case. The two police officers entered the cafe in which their informer allegedly said the defendant was brandishing a gun. They watched the defendant in the cafe and observed no violations or any untoward conduct but nevertheless followed him when he departed from the premises. The ensuing conduct of the officers is set forth in the majority opinion and gives rise to the issues here. However, as to certain conclusions therein contained we must respectfully disagree. The first item of disagreement is an issue as to when the arrest actually occurred.
This was a situation of an arrest by a police officer without a warrant. A police officer may arrest for the commission of a felony or a misdemeanor committed in his presence, when he knows the person has committed a felony although not in his presence, when he has reasonable cause to believe that the person in question committed the felony, when he *513 has positive information from an authoritative source, when another officer holds a warrant for such arrest, when he has received positive information as may afford him reasonable cause to believe that a felony has been committed or reasonable cause to believe that such person has committed it, and when he has reasonable cause to believe that such person is an escaped convict or parole violator. See MCLA 764.15; MSA 28.874. None of these fact situations seems to apply in this case if we determine that the arrest took place at the time that the defendant's forward motion was first restricted by the challenge of the police officers in uniform.
The question of the existence of reasonable or probable cause is best determined from the analysis of the statute providing for the necessary elements in an affidavit for a search warrant. MCLA 780.653; MSA 28.1259(3). In the first instance it is necessary that the information supplied be reliable and from a credible person and that such person have the personal knowledge of the matters reported. In the instant case, there is no showing that the information came from a credible person nor is there any basis on which to conclude that the person furnishing the information was a credible source. The informant apparently was a person unknown to the officer who took the information and to all intents and purposes the officer had no prior knowledge of the individual upon which to base a conclusion that he was dealing with a credible person.
In People v Gonzales, 356 Mich 247, 253 (1959), the Court cited favorably from 4 Am Jur, Arrest, § 2, wherein arrest is defined as follows:
"An arrest is the taking, seizing, or detaining of the person of another, either by touching or putting hands on him, or by any act which indicates an intention *514 to take him into custody and subjects the person arrested to the actual control and will of the person making the arrest. The act relied upon as constituting an arrest must have been performed with the intent to effect an arrest and must have been so understood by the party arrested."
The United States Supreme Court in Henry v United States, 361 US 98, 103; 80 S Ct 168, 171; 4 L Ed 2d 134, 139 (1959), expressed the following view as to when an arrest took place where Federal police officers had been watching defendants shift cartons from a building to an automobile and transport them to another building in another area of the town as an outgrowth of information of an undisclosed nature implicating the defendants in a theft from an interstate shipment of whisky. The officers got out of their car and searched the defendants' car, seizing cartons therein, which were subsequently determined to contain stolen radios. The Court stated therein:
"[T]he arrest took place when the Federal agents stopped the car. That is our view on the facts of this particular case. When the officers interrupted the two men and restricted their liberty of movement, the arrest, for the purposes of this case, was complete. It is, therefore, necessary to determine whether at or before that time they had reasonable cause to believe that a crime had been committed. The fact that afterwards contraband was discovered is not enough. An arrest is not justified by what the subsequent search discloses."
Applying the Am Jur definition and the Supreme Court conclusions in Henry to the facts of the instant case, it is my conclusion that the Court should have and must have found that when the police officers stopped and detained the defendant, the defendant was then effectively placed under arrest prior to the *515 interrogation and the search which produced the gun. At that point the officers had no probable cause for the arrest of the defendant because he had committed no offense and they had no information on which to credibly conclude that there was a reasonable basis to believe that the defendant was committing or was about to commit a felony.
The arrest being illegal, any fruits of the search that followed did not justify the arrest nor lend sanctity to the gun as admissible evidence. Henry v United States, supra. We make no comment on the admissibility of defendant's statements after the arrest as we find it, even though it appears that he was not properly advised of his rights prior to interrogation following his arrest. See Miranda v Arizona, 384 US 436; 86 S Ct 1602; 16 L Ed 2d 694 (1966).
An examination of the transcript indicates that at the Walker hearing (see p 2 of transcript of such proceedings) the court disclosed that even prior to the commencement of trial the court had read the transcript of the preliminary examination held in the instant case. The trial court in this instance was the same judge as the one who conducted the Walker hearing and he tried the matter without a jury and consequently sat as the trier of the facts. This gives rise to a second issue. Although we do not suggest that the trial court was prejudiced as a result of the examination of the transcript of the preliminary proceedings, we note that a trial judge sitting as the trier of the facts can assume no greater prerogative than a jury if a jury were impaneled to determine the facts. People v Ramsey, 385 Mich 221 (1971).
The second page of the Walker hearing transcript contains the following exchange between the prosecutor and the court:
*516 "May it please the court, this is the matter of the People of the State of Michigan versus Robert L. Jeffries. Mr. Jeffries is charged with the offense of carrying a concealed weapon. A preliminary examination was held before the Honorable Claude Olmsted on Friday, November 21, 1969, and at that time the defendant was bound over to circuit court on the charge.
"The Court: For your information, I have read this over this morning so I know what's in it."
A fair examination of this exchange forcibly leads one to the conclusion that the trial judge had read and was familiar with the contents of the preliminary examination.
In People v Ramsey, supra, at 225, the Supreme Court of Michigan held:
"This case demonstrates the need for an absolute rule in this situation. There is no way to determine whether or not the trial court was prejudiced by `glancing' at the transcript. In fact, it is difficult to determine precisely how much, if any, of the transcript was read by the court, or for what purpose. Therefore, in order to avoid problems of proof on this issue, we hold that as an absolute rule it is reversible error for the trial court sitting without a jury to refer to the transcript of testimony taken at the preliminary examination except under the exceptions provided by statute."
This case likewise does not come within the statutory exception which exists for the purpose of preserving the defendant's right to confrontation as guaranteed to him by the state and Federal constitutions. See MCLA 768.26; MSA 28.1049.
In light of this pronouncement by the Supreme Court we believe that as a matter of law this Court has an obligation to raise this issue sua sponte and *517 dispose of the case on the basis of what has been properly labeled by our Supreme Court as reversible error.
For both of the reasons set forth hereinabove as to the arrest and the consequent search and the illegal fruits thereof and the reading of the preliminary examination transcript prior to trial, we would reverse and remand for new trial.
NOTES
[*]  Former circuit judge, sitting on the Court of Appeals by assignment pursuant to Const 1963, art 6, § 23 as amended in 1968.
[1]  MCLA 750.227; MSA 28.424.
