Arrest

Must a police officer have an arrest warrant before making an arrest?

Yes, except in circumstances permitting warrantless arrests. A police officer may make a warrantless arrest if a felony, misdemeanor, or local ordinance violation is committed in the officer’s presence. Additionally, a police officer may make a warrantless arrest for certain offenses not committed in the officer’s presence, such as felonies, misdemeanors authorizing maximum penalties more than 92 days in jail, drunk driving offenses resulting in accidents, retail fraud offenses, domestic assault offenses, and Personal Protection Order violations, to name some of the offenses allowing warrantless arrests. If you are in your home, and not walking or driving around, the police officers generally need an arrest or search warrant to arrest you.

On warrantless arrests, what evidence does a police officer need to arrest someone?

A police officer needs "probable cause" to believe that one of the authorized types of offenses was committed, is being committed, or will be committed. The same "probable cause" standard applies to arrest and search warrants. Proof beyond a reasonable doubt, our judicial system's highest quantum of proof, and the proof needed to convict someone at Trial, is not needed.

What is "probable cause"?

"Probable cause," also known as "reasonable cause," exists, according to the Michigan Supreme Court, "where the facts and circumstances within an officer's knowledge . . . are sufficient . . . to warrant a man of reasonable caution in the belief that an offense has been or is being committed."

Must a police officer have "probable cause" to stop and detain a person?

No. A police officer may stop and detain a person if the officer has "reasonable suspicion" that criminal activity might be afoot. This allows the police officer, who has an interest in the prevention and detection of crime, to investigate the circumstances giving rise to the "reasonable suspicion." "Reasonable suspicion," although not precisely defined, is a lesser quantum of proof than "probable cause."

Can a police officer approach a person and ask questions without having "probable cause" or "reasonable suspicion"?

Yes, a police officer, like any other person, may ask questions of a person, so long as no coercion or detention occurs. These events are called "consensual encounters" or "informational encounters." If the person does not wish to talk to the police officer, or answer questions, he or she should terminate the conversation or walk away.

So, to sum up, when can a police officer stop a person?

In 3 different circumstances: (1) if the officer has an arrest warrant or "probable cause" to arrest; (2) if the officer has "reasonable suspicion" to detain the person; and (3) if the officer approaches and asks questions, which are consensually answered by the person.

After an arrest, does the police officer have to inform the person of his or her Miranda rights?

No. Miranda warnings are only required when a government agent interrogates the person who is in custody, and only when the prosecution wants to later admit into evidence the statements made by the arrested person.

Can a person go free, i.e., be released from confinement, if the police officer did not administer Miranda warnings?

No. Miranda warnings are "testimonial" protections under our state and federal Constitutions, not arrest protections.

What happens if Miranda warnings are not given to a person in custody?

It depends. If the person was not interrogated while in custody by government agents, then no relief or remedy will be available. On the other hand, if the person was interrogated while in custody by government agents, then all the person's statements, oral and written, made in response to the interrogation will not be admitted into evidence. However, the police and prosecutor may still use other evidence against you.

What if a person who is in custody voluntarily provides information to the police without being asked?

Those statements will be admitted into evidence, because the police officer did not "interrogate" or ask the person questions. Miranda warnings are only required when government agents "interrogate" the person in custody.

Should a person resist arrest if he or she thinks the arrest is wrongful?

No. If a person resists arrest, he or she may also be charged with the additional crime of resisting arrest. In Michigan, although a person may legally resist an "unlawful arrest," he or she better be right in the assumption that the arrest was unlawful or wrong—or else the person will not have that defense available.

How long will a person remain under arrest?

Usually until the person posts bond, either with the law enforcement agency or the court. However, some offenses require a minimum required stay in jail, even if the person can post bond. Such offenses include drunk driving, which only permits a person to be released after being in a proper condition, and domestic assault, which permits a person to be released after a "cooling off" period.