PEOPLE OF MI V TIYA MANNINGAnnotate this Case
STATE OF MICHIGAN
COURT OF APPEALS
PEOPLE OF THE STATE OF MICHIGAN,
December 15, 2000
Wayne Circuit Court
LC No. 99-006691
February 2, 2001
Before: O'Connell, P.J., and Kelly and Whitbeck, JJ.
The prosecution in this case appeals by leave granted from a trial court order granting
defendant's Tiya Manning's motion to suppress an inculpatory statement that she gave to police
officers while she was confined and awaiting arraignment. The trial court entered a stay of the
proceedings pending the outcome of this interlocutory appeal. In this appeal, we must explore
the "fit" between the Michigan Supreme Court's standards for the suppression of a confession
following an arrest without a warrant in People v Cipriano,1 and the United States Supreme
Court's standards for the delay of a probable cause determination after an arrest without a warrant
in Riverside Co v McLaughlin.2 We conclude that Riverside Co does not supplant Cipriano and
that, indeed, the two opinions dovetail. We further conclude that this Court's post-Riverside Co
decisions in People v McCray3 and People v Whitehead,4 while emphasizing Riverside Co and
not mentioning Cipriano, are not to be read as departing from Cipriano. We therefore reverse
I. Basic Facts And Procedural History
The trial court set forth the pertinent facts of this case in its opinion and order granting
defendant's motion to suppress:
In the early morning of June 15, 1999, Inkster Police responded to a drive
by shooting on Florence Street. At approximately 1:08 a.m., defendant was
arrested by Inkster Police in regard to a possible role in the homicide that resulted
from the shooting. The defendant spent the night in a cell in the Inkster police
headquarters and at about 5:30 a.m. on the morning of the fifteenth, defendant was
read her rights by Sgt. Hill and gave a statement. On the morning of June 18,
1999, at about 10:20 a.m., defendant gave Detective Williams a note stating that
she wished to talk to him without an attorney present. Defendant then gave
another statement allegedly implicating herself in the homicide. Defendant
wishes to have the second statement (June 18, 1999, 10:30 a.m.) suppressed.
The procedural aspect of the police investigation is somewhat involved.
The Inkster Police Department is a comparatively small police department
consisting of approximately 35-40 police officers of whom six are detectives. Of
those six detectives, only one detective (Detective Hines) is specially designated
for homicide cases. In 1999, twelve homicides occurred within the City of
Inkster. The first officer in charge was Detective Abdallah, who was the on call
officer on the night of June 14-15, 1999. Detective Abdallah went on vacation on
the sixteenth and that morning Detective Williams was assigned to the case.
Detective Hines was assigned to assist Detective Williams as it was his first
homicide investigation. Detective Williams spent the morning of the sixteenth
reviewing the case and that afternoon proceeded to have a warrant application
typed to arraign the defendant. The application was completed on the morning of
the seventeenth and both Detective Williams and Detective Hines went downtown
to the prosecutor's office to have the warrant prepared. As this was Detective
Williams' first trip to the homicide unit, Detective Hines went along.
The warrant application was processed and the two officers left. Later that
afternoon, Detective Williams went back downtown to pick up the completed
warrant. Upon his return to Inkster, Detective Williams went to the 22d District
Court at or about 3:30-4:30 p.m. on June 17, 1999, to have defendant arraigned.
Unfortunately, the warrant was incomplete with key documentation missing.
Detective Hines verified that paperwork was missing and that the warrant would
have to be redone. The next morning, June 18, 1999, Detective Hines was
assigning cases, filling in for another vacationing officer. Detective Williams
advised him that defendant wanted to speak with him and Detective Hines advised
Detective Williams to get the request in writing. Detective Williams took
defendant's second statement. Subsequently, Detective Williams proceeded
downtown and received the new warrant and defendant was arraigned that
Approximately 81 hours passed between the time defendant was arrested
and the time of the second statement.
The prosecution charged Manning with first-degree murder5 and two counts of assault
with the intent to commit murder.6 Manning successfully moved to quash one of the assault
counts. Manning thereafter filed a motion to suppress her statement and conduct a Walker
Manning argued that because of the delay in arraignment, her statement was
involuntary under the standard announced in Cipriano, supra. Following the release of this
Court's opinion in Whitehead, supra, Manning argued that both Whitehead and the United State
Supreme Court's decision in Riverside Co, mandated that her statement be automatically
suppressed because she was held for over eighty hours without arraignment.
In its analysis, the trial court made the following finding:
[T]here is nothing in this record which indicates that the detectives of the
Inkster Police Department were motivated by a desire to gain additional
information to justify Ms. Manning's arrest and nothing in this record indicates
that Inkster detectives intentionally delayed in arraigning Ms. Manning in the
hopes of eliciting an incriminating statement. Other than delay, there is nothing in
this record which indicates that the factors cited in Cipriano, supra, regarding the
voluntariness of defendant's second statement taken on June 18, 1999, at 10:20
a.m. exists in this case.
Nevertheless, the trial court emphasized the length of the delay and concluded that Riverside Co
required it to suppress the statement regardless of its voluntary nature.
II. Standard Of Review
We must determine whether the trial court erred in finding that Manning's confession was
involuntary solely on the basis of the length of delay between the time of her arrest and her
arraignment. A trial court must view the totality of the circumstances in deciding whether a
defendant's statement was knowing, intelligent, and voluntary.8 This Court will not reverse the
trial court's findings regarding those circumstances unless they were clearly erroneous.9
finding is clearly erroneous if it leaves us with a definite and firm conviction that the trial court
made a mistake.10 Resolution of this appeal also entails a question of law. We review such
questions de novo.11
III. Michigan Pretrial Criminal Practice And Procedure
A proper understanding of the rather intricate issue of the intersection between the Fifth
and Fourth Amendment requirements requires a threshold knowledge of Michigan pretrial
criminal practice and procedure. Below, we briefly outline that process.
Before making an arrest, a peace officer generally obtains an arrest warrant from a
magistrate upon a showing of probable cause. There are two predicates to the issuance of such
an arrest warrant: (1) the presentation of a proper complaint alleging the commission of an
offense and (2) a finding of "reasonable cause" to believe that the individual accused in the
complaint committed that offense.12 The magistrate may base the finding of reasonable cause on
the factual allegations of the complainant in the complaint, the complainant's sworn testimony,
the complainant's affidavit, or the supplemental sworn testimony or affidavits of other
individuals presented by the complaint or required by the magistrate.13 MCR 6.102(A) uses the
phrase "probable cause" and MCR 6.102(B) states that a finding of probable cause "may be based
on hearsay evidence and rely on factual allegations in the complaint, affidavits from the
complainant or others, the testimony of a sworn witness adequately preserved to permit review,
or any combination of these sources." Importantly, a peace officer may arrest a person without a
warrant if a misdemeanor is committed in the officer's presence or if there is reasonable cause to
believe a felony was committed and that the person arrested committed it.14
C. District Court Arraignments
After a person is arrested without a warrant, the arresting officer must bring that person
before a magistrate for arraignment "without unnecessary delay."15 At the arraignment, the
magistrate determines whether there is probable cause to believe the person committed the crime.
When a person is arrested without a warrant, therefore, no judicial officer has yet found that there
was reasonable cause for the arrest. Thus, while all accused persons are "presumptively innocent
until proven guilty," when a person is being held without a warrant or probable cause hearing, a
judicial officer has not yet determined that there is even reasonable cause to believe the person
committed a crime. Therefore, when Justice Scalia referred in his dissent in Riverside Co to an
"innocent arrestee," he was quite literally correct.16
The Fourth Amendment of the United States Constitution, as applied to the states through
the Fourteenth Amendment,17 prohibits unreasonable searches and seizures. See US Const, Am
IV, which states:
The right of the people to be secure in their persons, houses, papers, and
effects, against unreasonable searches and seizures, shall not be violated, and no
Warrants shall issue, but upon probable cause, supported by Oath or affirmation,
and particularly describing the place to be searched, and the persons or things to
According to the United States Supreme Court, a delay of more than forty-eight hours after arrest
is presumptively unreasonable, absent extraordinary circumstances.18 In Michigan, this right to
be taken before a magistrate for arraignment without unnecessary delay implicates two sections
in the Declaration of Rights of our constitution: § 11, which provides that "[t]he person, house,
papers and possessions of every person shall be secure from unreasonable searches and seizures,"
and § 17 which provides that "[n]o person shall be . . . deprived of life, liberty or property,
without due process of law."19
D. Preliminary Examinations And Bindovers
The next step in the process is the preliminary examination, which must be conducted
within fourteen days of the arraignment.20 If the court permits the defendant to waive the
preliminary examination, it must bind the defendant over for trial.21 If the defendant does not
waive the preliminary examination, each party may subpoena witnesses, offer proofs, and
examine and cross-examine witnesses.22 In a felony matter, if, after considering the evidence, the
court determines that there is probable cause to believe that the offense has been committed and
that the defendant committed it, the court must bind the defendant over to the trial court,
generally a circuit court, for trial.23
E. Trial Court Arraignment
An arraignment in trial court must be based on an information or an indictment.24
Generally, the prosecutor uses an information, although grand jury indictments remain an
alternative method. Unless a defendant is a fugitive from justice, the prosecutor's information
may not be filed until the defendant has had or waives a preliminary examination,25 but the
information must be filed on or before the date set for the trial court arraignment.26 A defendant
may waive trial court arraignment by filing a written statement "acknowledging that the
defendant has received a copy of the information, has read or had it read or explained,
understands the substance of the charge, waives arraignment in open court, and pleads not guilty
to the charge or stands mute."27 Otherwise, at the trial court arraignment, a defendant may plead
not guilty, guilty, nolo contendere, guilty but mentally ill, or not guilty by reason of insanity.
F. Walker Hearings
In People v Walker,28 the Michigan Supreme Court held that when a defendant contends
that statements that had been made were involuntary, the trial court must conduct a hearing
outside the presence of the jury to determine the issue of voluntariness, at which the defendant
may take the stand without waiving the right not to testify at trial. This right to a pretrial judicial
determination of the voluntariness of a criminal defendant's statement derives from the
prohibition in the Fifth Amendment of the United States Constitution against compelling a
person in a criminal case to be a witness against himself; our Michigan counterpart is in Const
1963, art 1, § 17. The requirement that a defendant's statement be voluntary is based on the
recognition that there are means, ranging from outright physical brutality to more refined and
subtle methods, for "overcoming a defendant's will."29 As the United States Supreme Court has
"[T]his court has recognized that coercion can be mental as well as
physical, and that the blood of the accused is not the only hallmark of an
A number of cases have demonstrated, if
demonstration were needed, that the efficiency of the rack and thumbscrew can be
matched, given the proper subject, by more sophisticated modes of
A motion to suppress evidence must be made in advance of trial,31 and this requirement applies
to a motion to suppress an involuntary confession.32 Therefore, a motion for a Walker hearing
will normally follow the trial court arraignment but precede the actual trial. It is at this point that
the Fifth Amendment protection against self-incrimination intersects with the Fourth Amendment
protection against unreasonable searches and seizures, because a defendant may argue that an
unreasonable delay between an arrest without a warrant and the district court arraignment
resulted in an involuntary confession. Indeed, the defendants made exactly this argument in
Cipriano, McCray, and Whitehead, and it is this argument that Manning makes as well.
IV. Statement Of The Issue
The issue here is not simply whether Manning's Fourth Amendment rights were violated
by the delay. The delay here was clearly more than forty-eight hours and the burden would be on
the government to prove that extraordinary circumstances necessitated this delay.33 The issue
instead is whether Manning's statements should be suppressed because of the delay.
Michigan Supreme Court in Cipriano held that a statement obtained in connection with an
unreasonable delay is inadmissible only when the statement was involuntary, as determined by
several factors.34 The decision in Cipriano occurred before the United States Supreme Court's
decision in Riverside Co. Manning argues that the Cipriano factors are not applicable here
because the confession must be automatically suppressed under the Fourth Amendment
exclusionary rule. Therefore, the question becomes whether a Riverside Co Fourth Amendment
violation is one factor to be considered among the other Cipriano factors or whether such a
violation automatically results in suppression of the confession.
V. Seizure and Confession: Constitutional Limits
A. Purposes of the Fourth and Fifth Amendments
As noted above, the Fourth and Fifth Amendments of the United States Constitution are
applicable to the states through the Fourteenth Amendment.35 Further, the Declaration of Rights
in the Michigan Constitution also contains state counterparts to these amendments.36 The Fourth
Amendment prohibits unreasonable searches and seizures of persons and property.37 Thus, it is
this amendment that prohibits unreasonable delays between an arrest and a finding of probable
cause. The Fifth Amendment prohibits involuntary self-incrimination.38 It is therefore this
amendment that prevents a prosecutor from introducing a confession that was not made
voluntarily.39 When a confession is made during an unreasonable seizure, these two protections
B. Unreasonable Seizures: Riverside Co
In Gerstein v Pugh,40 the Supreme Court held that an arrest becomes unreasonable under
the Fourth Amendment if a person is held for an unreasonable time before a judicial officer
determines that there was probable cause for the arrest. In Riverside Co, the United States
Supreme Court held that any delay of more than forty-eight hours must be presumed
unreasonable.41 The burden then falls on the government to demonstrate that extraordinary
circumstances necessitated the delay.42 A shorter delay may also be unreasonable if it was
unnecessary.43 It is significant that Riverside Co was a civil case dealing solely with the Fourth
Amendment prohibition against unreasonable seizures.44 It did not address the effect of the
unreasonable delay on the prosecutor's ability to introduce a confession obtained during the
Riverside Co involved a federal class action by Donald McLaughlin seeking injunctive
and declaratory relief on behalf of himself and "'all others similarly situated.'"46 McLaughlin's
"situation" was quite simple. He was incarcerated in the Riverside County Jail and had not
received a probable cause determination.47 A second amended complaint named three additional
plaintiffs, individually and as class representatives, and asserted that each of these plaintiffs had
been arrested without a warrant, had received neither a prompt probable cause hearing nor a bail
hearing, and was still in custody.48 The federal district court issued an injunction.49 The Ninth
Circuit Court of Appeals determined that Riverside County's policy of providing probable cause
determinations within forty-eight hours of arrest was not in accord with Gerstein, which required
a probable determination "promptly after arrest."50
Riverside County, in a procedure similar to Michigan's, combined probable cause
determinations with arraignment procedures and required arraignments to be "conducted without
unnecessary delay and, in any event, within two days of arrest."51
However, the two-day
requirement did not count weekends and holidays.52 Thus, according to the Supreme Court, "an
individual arrested without a warrant late in the week may in some cases be held for as long as
five days before receiving a probable cause determination" and "[o]ver the Thanksgiving holiday,
a 7-day delay is possible."53
Therefore, the United States Supreme Court in Riverside Co had to decide at what point a
delay in arraignment following an arrest without a warrant became an "unreasonable delay" under
the Fourth Amendment.54 Importantly, however, the United States Supreme Court did not face
the Fifth Amendment question of the voluntariness of confessions obtained during an
unreasonable delay, nor the question of the exclusion of such confessions under the Fourth
The Court's answer to the delay issue was reasonably straightforward:
[W]e believe that a jurisdiction that provides judicial determinations of
probable cause within 48 hours of arrest will, as a general matter, comply with the
promptness requirements of Gerstein. For this reason, such jurisdictions will be
immune from systemic challenges.
This is not to say that the probable cause determination in a particular case
passes constitutional muster simply because it is provided within 48 hours. Such
a hearing may nonetheless violate Gerstein if the arrested individual can prove
that his or her probable cause determination was delayed unreasonably. Examples
of unreasonable delay are delays for the purpose of gathering additional evidence
to justify the arrest, a delay motivated by ill will against the arrested individual, or
delay for delay's sake. In evaluating whether a delay in a particular case is
unreasonable, however, courts must allow a substantial degree of flexibility.
Courts cannot ignore the often unavoidable delays in transporting arrested persons
from one facility to another, handling late-night bookings where no magistrate is
readily available, obtaining the presence of an arresting officer who may be busy
processing other suspects or securing the premises of an arrest, and other practical
Where an arrested individual does not receive a probable cause
determination within 48 hours, the calculus changes. In such a case, the arrested
individual does not bear the burden of proving an unreasonable delay. Rather, the
burden shifts to the government to demonstrate the existence of a bona fide
emergency or other extraordinary circumstances. The fact that in a particular case
it may take longer than 48 hours to consolidate pretrial proceedings does not
qualify as an extraordinary circumstance. Nor, for that matter, do intervening
weekends. A jurisdiction that chooses to offer combined proceedings must do so
as soon as is reasonably feasible, but in no event later than 48 hours after arrest.
Justice Scalia dissented, pointing with some disdain to "this Court's constitutional jurisprudence,
which alternately creates rights that the Constitution does not contain and denies rights that it
does."56 In Justice Scalia's view, the promptness requirement in Gerstein "left no room for
intentional delay unrelated to the completion of 'the administrative steps incident to arrest.'"57
While acknowledging that he was not certain how to determine an outer limit,58 he ultimately
[A]bsent extraordinary circumstances, it is an "unreasonable seizure"
within the meaning of the Fourth Amendment for the police, having arrested a
suspect without a warrant, to delay a determination of probable cause for the arrest
either (1) for reasons unrelated to arrangement of the probable-cause
determination or completion of the steps incident to arrest, or (2) beyond 24 hours
after the arrest.59
Despite Justice Scalia's more restrictive view, the majority holding in Riverside Co is
clear. A delay of more than forty-eight hours between an arrest without a warrant and a probable
cause arraignment shifts the burden to the government to show the existence of a bona fide
emergency or other extraordinary circumstances.60
Absent such a showing, the delay is
unreasonable per se under the Fourth Amendment.61 Again, however, Riverside Co did not deal
with the consequences of an unreasonable delay when, during the delay, a criminal defendant
makes a confession to the police.62
C. Voluntary Confessions: Cipriano
When Riverside Co was decided, the Michigan Supreme Court had already established a
test to determine whether a confession made during a delay between arrest and arraignment must
be suppressed.63 The Court did not explicitly analyze this issue under either the Fourth or Fifth
Amendment. However, the Court used the language of Fifth Amendment analysis, stating that
the prosecutor may introduce a confession if it was made voluntarily.64 The Court then listed the
factors for establishing whether a statement was voluntary.65
Cipriano involved three defendants, all of whom were apparently arrested without a
warrant66 and held in confinement for forty-six hours or more before arraignment and all of
whom made incriminating statements to the police while confined.67 Defendants Dean and
Harrison moved for Walker hearings, which are hearings held outside the presence of the jury to
determine whether an incriminating statement was voluntary.68 The trial courts found that their
statements were voluntarily given.69 With respect to defendant Cipriano, the district court judge
held a Walker hearing during the preliminary examination and found all of his statements to be
admissible.70 Defendant Cipriano then filed a motion to suppress the statements, on the basis of
the length of his detention before arraignment, but the trial court denied that motion after a
hearing.71 All the defendants were subsequently convicted and appealed to this Court and,
ultimately, the Michigan Supreme Court, where their cases were consolidated.72
Cipriano involved, as does the case we decide today, the admissibility of confessions obtained
after a delay—perhaps even an unreasonable delay—between an arrest without a warrant and an
The case therefore squarely addresses the intersection between the Fifth
Amendment, which protects against involuntary self-incrimination, and the Fourth Amendment,
which protects against unreasonable seizures.
The Court prefaced its decision in Cipriano with a comprehensive analysis of the
evidentiary consequences of illegal prearraignment detention.73 It outlined the McNabb-Mallory
rule74 and the congressional reaction to that rule in 18 USC 3501.75 The Court also discussed the
history of the McNabb-Mallory rule in Michigan.76 Specifically, it noted77 that, although the rule
was never applicable to criminal proceedings in state courts,78 Michigan became the first state to
adopt the rule in People v Hamilton.79 However, the Court then noted that a split on the issue
appeared, beginning with People v Ubbes,80 and that in 1979 a Maryland court suggested that the
McNabb-Mallory rule had the effect of "'burning the barn to get rid of the mice . . . .'"81
The Court noted further that Michigan prearraignment delay statutes have never included
a directive that failure to comply will make a voluntary confession inadmissible.82 According to
the Court, delay in arraignment is only one factor that must be considered in evaluating the
voluntariness of a confession in Michigan, as well as in the federal courts and a majority of the
states.83 The Court stated that "[t]he test of voluntariness should be whether, considering the
totality of all the surrounding circumstances, the confession is 'the product of an essentially free
and unconstrained choice by its maker,' or whether the accused's 'will has been overborne and his
capacity for self-determination critically impaired.'"84 The Court then set out the factors for
determining whether a statement is voluntary:
the age of the accused; his lack of education or his intelligence level; the extent of
his previous experience with the police; the repeated and prolonged nature of the
questioning; the length of the detention of the accused before he gave the
statement in question; the lack of any advice to the accused of his constitutional
rights; whether there was an unnecessary delay in bringing him before the
magistrate before he gave the confession; whether the accused was injured,
intoxicated or drugged, or in ill health when he gave the statement; whether the
accused was deprived of food, sleep, or medical attention; whether the accused
was physically abused; and whether the suspect was threatened with abuse.
On the basis of these factors, the majority upheld the convictions of all three defendants.86
Justice Cavanaugh, joined by Justices Levin and Archer, dissented and would have reversed and
remanded for a new trial for defendant Dean, upheld the conviction of defendant Harrison, and
reduced the conviction of defendant Cipriano to second-degree murder with an option on the part
of the prosecutor to retry the defendant for first-degree murder.87 Justice Cavanaugh summed up
the dissenting viewpoint in one sentence, "We perceive no functional difference between
suppressing a confession made during unlawful detention following an illegal arrest and
suppressing a confession obtained during a detention made illegal because of unnecessary delay
D. Suppression of Confessions After Riverside Co
The tests of Riverside Co and Cipriano are quite clear. However, the effect of Riverside
Co on Cipriano is not so clear. The state courts that have addressed Riverside Co's effect on
their own suppression tests are split.89 In Powell v Nevada,90 the United States Supreme Court
faced the question whether confessions that are voluntary under the Fifth Amendment must still
be suppressed because they resulted from an unreasonable seizure under the Fourth Amendment,
but declined to answer it. Justice Thomas would, however, have found that the defendant's
statement should not be suppressed "because the statement was not a product of the McLaughlin
[Riverside Co] violation."91
The exclusionary rule generally prohibits the prosecutor from introducing evidence
obtained during a violation of a defendant's Fourth Amendment rights. However, the United
States Supreme Court has repeatedly held that a Fourth Amendment violation does not
necessarily require the exclusion of evidence obtain as a result of the violation.92 "'The question
whether the exclusionary rule's remedy is appropriate in a particular context has long been
regarded as an issue separate from the question whether the Fourth Amendment rights of the
party seeking to invoke the rule were violated by police conduct.'"93 In Pennsylvania Bd of
Probation & Parole v Scott,94 which held that the exclusionary rule does not apply in parole
revocation hearings, the Court, with Justice Thomas this time writing the majority opinion, noted
that it had "emphasized repeatedly that the State's use of evidence obtained in violation of the
Fourth Amendment does not itself violate the Constitution."95 The Court went on to say:
[A] Fourth Amendment violation is "fully accomplished" by the illegal
search or seizure, and no exclusion of evidence from a judicial or administrative
proceeding can "'cure the invasion of the defendant's rights which he has already
suffered.'" The exclusionary rule is instead a judicially created means of deterring
illegal searches and seizures. As such, the rule does not "proscribe the
introduction of illegally seized evidence in all proceedings . . . ," but applies only
in contexts "where its remedial objectives are thought most efficaciously served."
. . . Moreover, because the rule is prudential rather than constitutionally
mandated, we have held it be applicable only where its deterrence benefits
outweigh its "substantial social costs."
To our eye, this looks remarkably like an invitation to use precisely the sort of balancing test that
the Michigan Supreme Court used in Cipriano. The harm caused by excluding a voluntary
confession solely on the basis of the delay would outweigh the benefit of this exclusion in
deterring unreasonable delays. Other remedies, such as the civil suit in Riverside Co, are
available to persons held beyond the requirements of Riverside Co. Moreover, the delay will be a
factor in the Cipriano analysis, increasing the possibility that the confession will be found
involuntary. A sufficiently long delay in itself will be enough to make a confession involuntary
under Cipriano. Thus, Riverside Co need not, and does not, supplant Cipriano. The question
then becomes whether this Court, directly or indirectly, has departed from the balancing approach
in its post-Riverside Co decisions.
E. Michigan's Post-Riverside Co Decisions
Michigan's courts have not explicitly addressed the effect of Riverside Co on Cipriano.
Few decisions concerning the suppression of confessions have been published since Riverside
Co. The two recent cases decided by this Court, McCray and Whitehead did not expressly apply
Cipriano, nor did they state that Cipriano did not apply.
McCray involved a defendant whom the police had arrested without a warrant and held
for three days before an arraignment.97
During his confinement, the defendant made an
incriminating statement to the police.98 Clearly, the delay in arraignment was an "unreasonable
delay" per se under the Riverside Co forty-eight-hour rule. However, this Court did not set aside
the statement. Instead, this Court remanded to the trial court for a hearing to ascertain whether
the police unreasonably delayed the defendant's arraignment, noting that "[t]he facts suggest that
the police were motivated by a desire to gain additional information to justify the arrest and may
have intentionally delayed McCray's arraignment in hopes of eliciting an incriminating
statement."99 Thus, while not citing Cipriano, this Court remanded for a hearing in which the
balancing process set out in Cipriano could take place. Nowhere in McCray is there any
indication that this Court would apply Riverside Co in order to suppress a statement made during
a delay, even if that delay was presumed unreasonable.
The second Court of Appeals case, Whitehead, also involved an arrest without a
warrant.100 As this Court observed, "[a]lmost four days later, after being repeatedly questioned
by various police officers, defendant signed a statement admitting that he was one of the men
who entered the store and committed the assaults."101 Again, therefore, the delay in arraignment
was unreasonable per se under the Riverside Co forty-eight-hour rule. Again, the case presented
this Court with the question whether the defendant's confession, obtained by the police during the
delay period and under highly questionable circumstances, should have been suppressed.102 This
Court declined to answer that question, preferring under the doctrine of judicial expediency to
decide whether the trial court's failure to suppress was harmless error.103 We found that any error
was harmless beyond a reasonable doubt, in light of the other overwhelming evidence of the
defendant's guilt, and therefore affirmed the trial court's decision.104
A harmless error analysis, of course, is not appropriate here because this is an
interlocutory appeal and it would be impossible to determine at this stage whether any error is
harmless. Therefore, we must decide the delay's effect on the confession. This is precisely what
this Court did not do in Whitehead. Admittedly, however, this Court used very strong language
in Whitehead in its dicta regarding the delay. We stated:
Persons arrested without a warrant are "presumptively innocent." Id. at
58. A prompt judicial determination of probable cause for an arrest is "one of the
most important" protections afforded citizens under the Fourth Amendment's
prohibition of unreasonable seizures. Id. at 60-61 (Scalia, J., dissenting). To
assure that protection, the forty-eight-hour rule established by Riverside must be
carefully observed by police authorities. Those who ignore that rule will do so at
their own peril, running the risk that confessions obtained will be deemed
inadmissible and that convictions based on those confessions will be reversed on
In making this very strong statement, this Court, as in McCray, did not refer to Cipriano
However, this Court in its dicta in Whitehead clearly did not describe a rule in which confessions
obtained during a period of unnecessary delay after an arrest without a warrant would be
Rather, we described a situation in which those obtaining such
confessions ran the risk of having them deemed inadmissible.107 Indeed, we stated earlier in the
opinion that the decision "provides a warning that statements made by an accused person during
a longer detainment may well be found inadmissible for purposes of securing a conviction at
trial."108 Thus, Whitehead raised the possibility of suppression; it did not require suppression,
despite strong evidence there that the police detained the defendant to secure his confession.109
Under the balancing analysis of Cipriano, officers obtaining confessions do run a greater risk of
having them suppressed as involuntary when the arraignment is unnecessarily delayed. However,
Whitehead does not stand for the proposition that such confessions should be automatically
F. The Exclusionary Rule
We would be remiss if we did not also comment on the purposes of the exclusionary rule.
The United States Supreme Court has noted that the Fourth Amendment has never been
interpreted to mandate the suppression of illegally seized evidence in all proceedings or against
all persons.110 In Pennsylvania Bd of Probation, the Court emphasized that "the State's use of
evidence obtained in violation of the Fourth Amendment does not itself violate the
Constitution."111 This Court, in People v Howard,112 referred to the exclusionary rule as a
"harsh" remedy and declined to hold that a violation of Michigan's statutory knock-and-announce
rule,113 necessarily required suppression of the evidence. We likewise decline to rule that a
Riverside Co violation requires an automatic suppression of an inculpatory statement given to
police. To adopt a rule mandating exclusion of a defendant's statement made during a violation
of the Fourth Amendment's promptness requirement would not further the primary purpose of the
exclusionary rule. In our view, the better approach is to consider the violation as a factor in
evaluating the overall voluntariness of the statement.
G. The Trial Court's Logic
Here, the trial court, relying on Riverside Co and referring to McCray and Whitehead,
suppressed Manning's statement solely because she gave it more than forty-eight hours after her
arrest without a warrant. In so doing, the trial court disregarded the balancing process the
Michigan Supreme Court set forth in Cipriano. While Manning argues that the trial court never
held that the holding of Riverside Co overruled the holding of Cipriano, this argument misses the
The trial court referred to Cipriano as exemplifying the "prior state of the law in
Michigan" and declined to apply it. In our view, Cipriano remains good law in Michigan. The
trial court, however, applied a rule of automatic exclusion nowhere to be found in Cipriano and,
indeed, nowhere to be found in Riverside Co, Powell, or Scott.
This automatic exclusion is not required by the Fifth Amendment or the Fourth
Amendment. The proper analysis is voluntariness under the Cipriano factors. The delay of more
than eighty hours presumptively violated the Fourth Amendment, but an unnecessary delay does
not require automatic suppression of the confession. It is not automatic that evidence obtained
during a Fourth Amendment violation must be excluded. When a confession was obtained
during an unreasonable delay before arraignment, in Michigan the Cipriano factors still must be
applied. The unreasonable delay is but one factor in that analysis. The longer the delay, the
greater the probability that the confession will be held involuntary. At some point, a delay will
become so long that it alone is enough to make a confession involuntary.
In engaging in the balancing process that Cipriano outlines, a trial court is free to give
greater or lesser weight to any of the Cipriano factors, including delay in arraignment. A trial
court cannot, however, give preemptive weight to that one factor, as the trial court did here. To
do so is to adopt a rule of automatic suppression of a confession obtained during the period of
delay, a result that is directly contrary to Cipriano and that neither Riverside Co, McCray, or
Here, the police held Manning without arraignment for at least eighty-one hours after her
arrest without a warrant. The trial court determined that the delay was the result of inexperience,
shifts in personnel, and an incomplete warrant package from the prosecutor's office. The sole
basis of the trial court's decision to suppress Manning's inculpatory statement was the length of
the pre-arraignment delay.
We conclude that the trial court erred in suppressing Manning's inculpatory statement
solely on the basis of the delay. The trial court should have instead considered whether the
statement was voluntary based on the totality of the circumstances.114 The record indicates that
Manning, who was nineteen years old at the time of her arrest, received Miranda115 warnings
before giving her inculpatory statement. Manning testified that she both read and understood her
rights. She further testified that the police did not deprive her of food, water, or sleep. Detective
Darian Williams testified that Manning did not appear to be under the influence of any drug or
other intoxicant and that she did not appear to need medical attention. Finally, we note that
Manning, rather than the police, initiated the discussion that resulted in her giving the inculpatory
On appeal, Manning notes that she gave the statement so that the police would cease their
questioning and because she believed that only by doing so would the police permit her to leave.
Manning argues that this testimony militates against a finding that the statement was voluntary.
We disagree. Our review of the record indicates only that the officers urged Manning to testify
truthfully. Moreover, while the officers may have indicated to Manning that she would be able to
go home after giving a statement, the record does not indicate that the officers conditioned her
right to leave on doing so.
Here, the trial court focused solely on the length of the delay and concluded that Riverside
Co required it to apply the exclusionary rule to suppress Manning's inculpatory statement. In our
view, as we have outlined above, the trial court was not so constrained. Therefore, we reverse
and remand to the trial court to make appropriate findings under the factors established in
We note, again, that the rationale behind the exclusionary rule is to deter official
misconduct.116 We are mindful of the warning that this Court issued in Whitehead.117 We
therefore recognize the possibility that in some situations the length of the delay alone may be a
sufficient ground to suppress a defendant's statement, particularly where the delay is so
inexplicably long that it raises an inference of police misconduct. However, we do not deal with
such a case here.
Reversed and remanded for proceedings consistent with this opinion. We do not retain
O'Connell, P.J., concurred.
/s/ William C. Whitbeck
/s/ Peter D. O'Connell
People v Cipriano, 431 Mich 315; 429 NW2d 781 (1988).
Riverside Co v McLaughlin, 500 US 44; 111 S Ct 1661; 114 L Ed 2d 49 (1991).
People v McCray, 210 Mich App 9; 533 NW2d 359 (1995).
People v Whitehead, 238 Mich App 1; 604 NW2d 737 (1999).
MCL 750.316(1)(a); MSA 28.548(1)(a).
MCL 750.83; MSA 28.278.
See People v Walker (On Rehearing), 374 Mich 331; 132 NW2d 87 (1965).
People v Snider, 239 Mich App 393, 416; 608 NW2d 502 (2000).
Id. at 417.
People v Givans, 227 Mich App 113, 119; 575 NW2d 84 (1997).
People v Webb, 458 Mich 265, 274; 580 NW2d 884 (1998).
MCL 764.1a; MSA 28.860(1).
MCL 764.15(1); MSA 28.874(1).
MCL 764.26; MSA 28.885; MCR 6.104.
Riverside Co, supra at 71.
Sodal v Cook Co, 506 US 56, 61; 113 S Ct 538; 121 L Ed 2d 450 (1992).
Riverside Co, supra at 56-57.
See Const 1963, art 1, §§ 11 and 17.
See also MCL 766.1; MSA 28.919, which entitles the state and the accused to a "prompt"
MCR 6.110(C); see also MCL 766.12; MSA 28.930.
MCR 6.110(E); see also MCL 766.13; MSA 28.931.
Walker, supra at 338.
Jackson v Denno, 378 US 368, 389; 84 S Ct 1774; 12 L Ed 2d 908 (1964).
Id. at 389-390, quoting Blackburn v Alabama, 361 US 199, 206; 80 S Ct 274; 4 L Ed 2d 242
People v Gray, 45 Mich App 643, 644; 207 NW2d 161 (1973), aff'd 393 Mich 1; 222 NW2d
People v Leonard, 81 Mich App 86, 89; 264 NW2d 130 (1978).
Riverside Co, supra at 57.
Cipriano, supra at 319.
Albright v Oliver, 510 US 266, 272-273; 114 S Ct 807; 127 L Ed 2d 114 (1994); Sodal, supra.
See Const 1963, art 1, §§ 11 and 17.
See US Const, Am IV.
See US Const, Am V.
Dickerson v United States, 530 US 428; 120 S Ct 2326; 147 L Ed 2d 405 (2000).
Gerstein v Pugh, 420 US 103, 114, 125; 95 S Ct 854; 43 L Ed 2d 54 (1975); see also Riverside
Co, supra at 53.
Riverside Co, supra at 56-57.
Id. at 57.
Id. at 56.
Id. at 47.
Powell v Nevada, 511 US 79, 84; 114 S Ct 1280; 128 L Ed 2d 1 (1994).
Riverside Co, supra at 47-48.
Id. at 48.
Id. at 49.
Id. at 50, quoting Gerstein, supra at 125.
Riverside Co, supra at 47.
Id. at 56-57.
Id. at 60.
Id. at 63, quoting Gerstein, supra at 114.
Riverside Co, supra at 67.
Id. at 70.
Id. at 57.
Powell, supra at 84.
See Cipriano, supra.
Id. at 319.
Id. at 334.
The majority opinion in Cipriano does not, however, explicitly state that defendant Harrison
and defendant Cipriano were arrested without a warrant.
Id. at 336-337, 339-341, 346.
Id. at 337, 341; see Walker, supra.
Cipriano, supra at 337, 341.
Id. at 347.
Id. at 319, 335, 339, 345.
Id. at 320-330.
Briefly, the McNabb-Mallory rule derives from two United States Supreme Court cases,
McNabb v United States, 318 US 332; 63 S Ct 608; 87 L Ed 819 (1943) and Mallory v United
States, 354 US 449; 77 S Ct 1356; 1 L Ed 2d 1479 (1957). In these cases the United States
Supreme Court determined that "the right of a suspect to prompt arraignment should be enforced
by automatically excluding from evidence any incriminating statement obtained during a period
of 'unnecessary delay,' even though the confession was not the result of physical or psychological
coercion." Cipriano, supra at 320.
Subsection b of 18 USC 3501 provides:
The trial judge in determining the issue of voluntariness shall take into
consideration all of the circumstances surrounding the giving of the confession,
including (1) the time elapsing between arrest and arraignment of the defendant
making the confession, if it was made after arrest and before arraignment, (2)
whether such defendant knew the nature of the offense with which he was charged
or of which he was suspected at the time of making the confession, (3) whether or
not such defendant was advised or knew that he was not required to make any
statement and that any such statement would be used against him, (4) whether or
not such defendant had been advised prior to questioning of his right to the
assistance of counsel[,] and (5) whether or not such defendant was without the
assistance of counsel when questioned and when giving such confession.
Cipriano, supra at 325-329.
Id. at 323, 325.
See Culombe v Connecticut, 367 US 568, 600-601; 81 S Ct 1860; 6 L Ed 2d 1037 (1961).
People v Hamilton, 359 Mich 410; 102 NW2d 738 (1960).
People v Ubbes, 374 Mich 571; 132 NW2d 669 (1965).
Cipriano, supra at 330, quoting Shope v State, 41 Md App 161, 171; 396 A2d 282 (1979).
Cipriano, supra at 333.
Id. at 333-334, quoting Culombe, supra at 602.
Cipriano, supra at 334.
Id. at 349.
Id. at 367.
Cipriano, supra at 360.
See New Jersey v Tucker, 137 NJ 259; 645 A2d 111 (1994); State v Huddleston, 924 SW2d
666 (Tenn, 1996).
Powell, supra at 85.
Id. at 89.
Arizona v Evans, 514 US 1, 10; 115 S Ct 1185; 131 L Ed 2d 34 (1995).
Id., quoting Illinois v Gates, 462 US 213, 223; 103 S Ct 2317; 76 L Ed 2d 527 (1983).
Pennsylvania Bd of Probation & Parole v Scott, 524 US 357; 118 S Ct 2014; 141 L Ed 2d 344
Id. at 362.
Id. at 362-363 (citations omitted).
McCray, supra at 12.
Id. at 11-12.
Id. at 12.
Whitehead, supra at 3-4.
Id. at 5.
Id. at 6.
Id. at 12.
Riverside Co, supra.
Whitehead, supra at 13-14.
Id. at 14.
Id. at 4 (emphasis supplied).
Id. at 3.
United States v Leon, 468 US 897, 906; 104 S Ct 3405; 82 L Ed 2d 677 (1984), citing Stone v
Powell, 428 US 465, 486; 96 S Ct 3037; 49 L Ed 2d 1067 (1976).
Pennsylvania Bd of Probation, supra at 362.
People v Howard, 233 Mich App 52, 53, 57; 595 NW2d 497 (1998).
MCL 780.656; MSA 28.1259(6).
Cipriano, supra at 333-334.
Miranda v Arizona, 384 US 436; 86 S Ct 1602; 16 L Ed 2d 694 (1966).
United States v Janis, 428 US 433, 446, 458-459; 96 S Ct 3021; 49 L Ed 2d 1046 (1976);
Cipriano, supra at 332.
Whitehead, supra at 13-14.