When a crime is detected or reported, local law enforcement must investigate by collecting and verifying evidence, identifying suspects, establishing motives and reporting the results of the investigation to the prosecuting authority. If the criminal was not caught in the act, this information provides a basis for the prosecutor’s decision whether or not to charge a suspect with a crime and initiate legal proceedings against him.
An individual’s first interaction with the criminal justice system is often an arrest — that is, when a person is taken into the government’s custody and detained.[119] When police officers make an arrest, they do so in one of two ways: either they apprehend the arrestee during or immediately after an incident and make a warrantless arrest, or they obtain and execute an arrest warrant.[a]
The Fourth Amendment to the U.S. Constitution protects citizens from unreasonable government searches and seizures of their person or property.
In Michigan, as in the rest of the United States, police officers are not allowed to make arrests at will. An arrest is considered a seizure and triggers a set of Fourth Amendment protections, as well as the presumption of innocence. In order to make an arrest, police officers must have a valid arrest warrant, or probable cause to make a warrantless arrest. In Michigan, probable cause exists “when the facts are sufficient to cause a fair-minded person of average intelligence to believe that the defendant committed the crime alleged.”[120]
Arrest Warrants
An arrest warrant is a document issued by a judge or magistrate that compels the accused to appear in court after a prosecutor has filed criminal charges against him using a document called a “complaint.”[121] A complaint contains the allegations against the defendant, the crimes he is being charged with and the factual basis for the allegations. If the court accepts the complaint, it issues an arrest warrant that allows the police to arrest the defendant and compel him to appear in court to answer the allegations set forth in the complaint.[122]
The Michigan Court Rules specify the requirements for a valid warrant. It must show probable cause, be issued by a “neutral and detached magistrate,” based on a truthful police affidavit and identify the person to be arrested. If the police seek a warrant on the basis of hearsay information — that is, information that was provided by a third party — they must demonstrate that the information is reasonably reliable.[123] A warrant empowers a police officer to make an arrest anywhere in the state, and even to forcibly enter a residence to execute the warrant.[124]
Warrantless Arrests
When a police officer wants to make an arrest without a warrant, the officer must have probable cause for doing so.[125] Michigan law permits a law enforcement officer to make a warrantless arrest in various circumstances, such as when that officer has cause to believe that a crime has occurred and the individual he is arresting has committed it, or that the arrestee observed the crime and will be an important witness.[b] The law also establishes the manner in which a valid arrest is executed:
There is generally no need to obtain a warrant to arrest a criminal suspect in a public place with probable cause. However, police are not allowed to make warrantless arrests of citizens in their homes, except in extreme circumstances.[129] An example of such an emergency situation might be when a police officer is chasing a criminal suspect and the suspect flees into his home for the purpose of evading capture or destroying evidence.
Processing an Arrest
After an arrest has been executed, police take the arrestee to the police station and put him in a holding cell after completing an administrative process called “booking.” This process involves a pat-down, the confiscation of personal possessions, photographing, fingerprinting and the collection of other identifying information.[c] The police may also impound and search the arrestee’s vehicle, question him, ask him to provide a handwriting sample and to participate in a line-up.[d] The police must provide him with an opportunity to seek legal counsel.[130] If an arrestee in police custody retains an attorney or someone retains one for him, the police must inform him when the attorney is available.[131]
Once the booking process is complete, the police either detain the arrestee in lock-up pending arraignment in court or release him with an appearance ticket. An arraignment is a legal proceeding in which the arrestee is formally accused of a crime and the judge decides whether or not to release him on bond or detain him until and throughout his trial.
The law directs the police to bring a person arrested without a warrant to court without delay to answer the charges against him. If an arrestee is not charged and booked within 48 hours, his attorney may obtain a court order, called a writ of habeas corpus, requiring the police to bring him before a judge to determine whether he is being held lawfully.[132]
If the suspect was arrested without a warrant for violating an ordinance or committing a misdemeanor for which the penalty does not exceed 93 days in jail, a fine, or both, the police can initiate charges by issuing an appearance ticket.[133] An appearance ticket is a legal document directing the arrestee to appear in court.[134] An arrestee served with an appearance ticket may be released pending his arraignment, rather than transported to court by the police. Most jurisdictions in Michigan maintain an “interim bond” process, which allows people who have been arrested without a warrant for a minor offense to deposit a sum of money with the police department in exchange for immediate release. The amount of the bond is set by the department and may range from an amount equal to the maximum possible fine for the offense, to 20 percent of the minimum possible fine for the offense.[135]
If the suspect was arrested for allegedly committing a felony or a misdemeanor punishable by more than 93 days’ imprisonment, the charges cannot be commenced by merely issuing a ticket. Rather, the police must provide the arrestee’s information to the appropriate prosecutor’s office, which determines whether criminal charges should be filed.[136] If charges are not filed, the arrestee is released. If the prosecutor files criminal charges against the arrestee, then the arrestee becomes a criminal defendant and his case proceeds to arraignment in the appropriate court.[137]
In summary, the typical path from the commission of a felony crime to the beginning of a criminal trial proceeds like this:
[a] An arrest warrant is distinct from a bench warrant, which a judge issues in order to compel the appearance of a defendant or witness in court. Although a bench warrant empowers the police to arrest the individual named, it does not initiate criminal action against that individual.
[b] The law also allows private persons to arrest individuals in certain circumstances, such as when they commit a felony in their presence. MCL § 764.15; MCL § 764.15-16.
[c] Michigan law requires law enforcement personnel to collect and file identifying information for individuals arrested for allegedly committing misdemeanor or felony crimes. MCL § 28.242.
[d] South Dakota v Opperman, 428 U.S. 364 (1976). The privilege against self-incrimination applies only to “testimonial communications,” and not things like participating in a line-up or providing a handwriting sample. U.S. v Hubbel, 530 U.S. 27 (2000).
[e] Other pleas available to the defendant include, with consent of both the court and the prosecutor, pleas of either guilty but mentally ill or not guilty by reason of insanity. The defendant can also make a conditional plea, which reserves him the right to appeal certain unfavorable rulings and withdraw the plea if those rulings get overturned on appeal. MCR § 6.301(C).
[f] Individuals who are detained pending trial may be allowed to pay a sum of money as collateral to the court in exchange for their release. This is called bail, and the amount of bail they must pay to secure their release is determined on a case-by-case basis by the judge.