(dissenting). Believing that the narrow strictures of the statutory authority permitting police officers to arrest persons for misdemeanors conforms with defendant's allegation, I must dissent.
It is axiomatic that the prosecution must establish the legality of defendant’s arrest when he is on trial for resisting arrest. People v Reed, 43 Mich App 51 (1972). This conclusion is dictated by the fact that the language of the statute under which defendant was charged1 proscribes only those attempts to resist police officers while "in their lawful acts”. (Emphasis added.) If the arrest is unlawful, a person is justified in using such reasonable force as is necessary to prevent or resist the arrest. People v Gray, 23 Mich App 139 (1970), and People v Bonello, 25 Mich App 600 (1970), citing People v Krum, 374 Mich 356 (1965), cert den, 381 US 935; 85 S Ct 1765; 14 L Ed 2d 699. It is at this point that my agreement with the majority ceases.
Defendant was arrested for allegedly committing the misdemeanor of being a disorderly person by uttering obscene words in public. The validity of the charge of resisting arrest predicated upon this misdemeanor appropriately depends upon the scope of police officers’ statutory authority to arrest persons for the commission of misdemeanors. MCLA 764.15; MSA 28.874, in pertinent part provides:
"Any peace officer may, without a warrant, arrest a person—
"(a) For the commission of any felony or misdemeanor committed in his presence;
* * *
"(c) When a felony in fact has been committed and he *584has reasonable cause to believe that such person has committed it;
"(d) When he has reasonable cause to believe that a felony has been committed and reasonable cause to believe that such person has committed it * * * (Emphasis added.)
This language indicates that a police officer may arrest a person without a warrant only for misdemeanors committed in his presence. The modifying phrase, "reasonable cause to believe”, is significantly absent from the provision regarding misdemeanors and applies only to felonies.
The majority has rewritten the clear language of the statute by relying upon the new rule enunciated in People v Dixon, 45 Mich App 64 (1973), which provides that a police officer may arrest a person "if, from personal observations, the officer has reason to believe that a misdemeanor was committed in his presence”. This alternative standard of "reasonable belief’ obfuscates the distinction drawn by the statute between the different tests employed to determine the validity of arrests for misdemeanors and felonies.
A "reasonable belief’ standard validates the arrest based upon the reasonableness of the officer’s subjective determination. This less stringent standard is applied to felonies because of the increased dangers created by these more serious offenses. The stricter statutory requirement that misdemeanors be committed in the presence of the officer guarantees that citizens will not be arrested for minor infractions upon the basis of another’s accusation or circumstantial evidence.
The effect of employing the standard relied upon by the majority is to change the focus of the inquiry from the actual conduct at issue to the *585police officer’s subjective determination. I cannot accept this substantive change in the statute, believing that the validity of misdemeanor arrests must rise or fall upon the subsequent objective determination of the truth of the facts precipitating the charge at trial. The majority’s reliance upon the police officer’s reasonable belief to sustain this defendant’s arrest ignores both the clear language of the statute and underlying rationale for the felony-misdemeanor distinction.
The ramifications of adopting the approach taken by the majority opinion are ominous. Although the "reasonable belief’ standard is limited to conduct within the officer’s presence, it creates a potential risk that it will be indiscriminately applied to justify arrests for misdemeanors based upon conduct outside the officer’s presence. The oversight of this critical modifying phrase, "committed in his presence”, by lower courts attempting to implement the standard creates a foreseeable abuse. Likewise, this approach provides the police with an inherently dangerous device to circumvent the prosecutor’s function of authorizing warrants for misdemeanors committed outside the presence of police officers.
The instant case presents an unfortunate example of the primary danger created by the "reasonable belief’ standard. The issue of whether defendant actually committed the underlying misdemeanor was propitiously decided by the district court jury verdict of not guilty. The finality of this jury verdict regarding a disposition upon the truth of the facts is subverted by an application of the majority’s new test to permit a second determination of what is the very same issue, i.e., did defendant commit a misdemeanor? The people have had their day in court, and I would find that they are *586collaterally estopped2 from relitigating this issue, which is an indispensable element of the resisting arrest charge.3 Since the issue of the commission of a misdemeanor has been decided adversely to the people, the policeman’s authority to arrest defendant has vanished and cannot be reinstated by his belief, albeit reasonable, that defendant has been or was committing a misdemeanor in his presence.
Not finding any authority for this Court to rewrite the challenged statute to add the modifying phrase, "reason to believe”, to the subsection governing misdemeanors, I dissent.
MCLA 750.479; MSA 28.747.
People v Jacoboni, 34 Mich App 84 (1971).
People v Reed, 43 Mich App 51 (1972).