Finding Probable Cause to Issue Arrest Warrant or Summons

3.9Finding Probable Cause to Issue Arrest Warrant or Summons ¹

In addition to the presentation of a proper complaint, issuance of an arrest warrant or summons requires the court to make a finding of probable cause ² to believe that the individual accused in the complaint committed that offense. MCL 764.1a(1); MCR 6.102(A). The court must make an independent determination of the existence of probable cause and may “not serve merely as a rubber stamp for the police.” United States v Leon, 468 US 897, 914 (1984) (internal citation and quotation marks omitted). See also People v Crawl, 401 Mich 1, 26 n 15 (1977).³ If a complaint is later found to have been issued without a finding of probable cause, an arrest warrant based on it is invalid. People v Burrill, 391 Mich 124, 132 (1974). However, such a complaint may nonetheless serve as a basis for starting judicial proceedings, and thus the court is not divested of jurisdiction when the complaint has insufficient factual support. Id. See also Frisbie v Collins, 342 US 519, 522 (1952) (“due process of law is satisfied when one present in court is convicted of [a] crime after having been fairly appri[s]ed of the charges against him [or her]”); People v Muhammad, 326 Mich App 40, 72 (2018) (“irrespective of whether there were errors associated with the warrant, defendant is not entitled to relief”). Moreover, even without a valid warrant, an arrest may be legal if circumstances allowing arrest without a warrant exist. For a summary of the arrest warrant and summons process, including the probable cause requirement, see the Michigan Judicial Institute’s checklist describing the process for issuing an arrest warrant, the checklist describing the process for electronically issuing an arrest warrant, and the flowchart for issuing a summons.

A.Probable Cause Defined

“‘[A]rticulating precisely what . . . “probable cause” means is not possible. [It is a] commonsense, nontechnical conception[] that deals with “the factual and practical considerations of everyday life on which reasonable and prudent men, not legal technicians, act” [and] as such the standards are “not readily, or even usefully, reduced to a neat set of legal rules.” . . . We have cautioned that [this] legal principle[] [is] not [a] “finely-tuned standard []” comparable to the standards of proof beyond a reasonable doubt or of proof by a preponderance of the evidence. [It is] instead [a] fluid concept[] that takes [its] substantive content from the particular contexts in which the standards are being assessed.’” Matthews v BCBSM, 456 Mich 365, 387 n 33 (1998), quoting and editing Ornelas v United States, 517 US 690 (1996).

A finding of probable cause on a complaint is proper where the complaint and testimony are sufficient to enable the judge or district court magistrate ⁴ “‘to make the judgment that the charges are not capricious and are sufficiently supported to justify bringing into play further steps of the criminal process.’” People v Hill, 44 Mich App 308, 312 (1973), overruled on other grounds People v Mayberry, 52 Mich App 450 (1974), quoting Jaben v United States, 381 US 214, 224-225 (1965).⁵

B.Evidentiary Support for a Finding of Probable Cause

“The finding of [probable] cause by the magistrate may be based upon 1 or more of the following:

(a) Factual allegations of the complainant contained in the complaint.

(b) The complainant’s sworn testimony.

(d) Any supplemental sworn testimony or affidavits of other individuals presented by the complainant or required by the magistrate.” MCL 764.1a(4).

See also MCR 6.102(B) (applicable only to offenses not cognizable by the district court, MCR 6.001(A)-(B)), which states:

“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.”

“The factual allegations contained in the complaint, testimony, or affidavits may be based upon personal knowledge, information and belief, or both.” MCL 764.1a(5). Thus, the factual basis is supplied by the operative facts relied on by the complaining witness and not merely by his or her conclusions. People v Burrill, 391 Mich 124, 132 (1974). It must appear that an affiant spoke with personal knowledge, or else the sources for the witness’s belief must be disclosed. People v Hill, 44 Mich App 308, 311 (1973).⁶ When the belief is based on information from other persons, other than an eyewitness, some basis of informant credibility must be shown. Id. at 311-312. This does not necessarily require the affiant to reveal the identity of the informant. McCray v Illinois, 386 US 300, 307-308 (1967). The information required to support informant credibility depends on its context, including the nature of the alleged crime and the source of the information. Jaben v United States, 381 US 214, 224 (1965). See also Adams v Williams, 407 US 143, 147 (1972) (“Informants’ tips, like all other clues and evidence . . . may vary greatly in their value and reliability.”).

C.Record of Testimony and Affidavits

“The magistrate may require sworn testimony of the complainant or other individuals. Supplemental affidavits may be sworn to before an individual authorized by law to administer oaths.” MCL 764.1a(5).

Any sworn testimony relied on in making the probable cause determination in a felony case must be “adequately preserved to permit review[.]” MCR 6.102(B).⁷

Although affidavits are not required to support a probable cause determination under MCL 764.1a(4) and MCR 6.102(B), if affidavits are used, they “must be verified by oath or affirmation.” MCR 1.109(D)(1)(f). An affidavit must be verified by “oath or affirmation of the party or of someone having knowledge of the facts stated[.]”⁸ MCR 1.109(D)(3)(a).

Committee Tip:

The arraignment, plea, or sentence may be conducted days, weeks, months, or years after the warrant was issued or may be conducted by someone other than the individual who signed the warrant. If an affidavit is used to establish probable cause and is in the court file, the court can easily refer to the affidavit when setting bond or taking a plea or sentencing to remind the court of the allegations.

² MCL 764.1a states that the warrant may be issued upon a finding of reasonable cause, which is a term interchangeable with probable cause. See 1989 Staff Comment to MCR 6.102: “[MCR 6.102](A) states the requirements for issuance of a warrant set forth in MCL 764.1a except that it substitutes ‘probable cause’ for ‘reasonable cause.’ These terms are viewed as equivalent, with ‘probable cause’ being preferable because it is a familiar and recognized standard.” This section will use the term “probable cause” as opposed to “reasonable cause.”

³Both Crawl and Leon involve search warrants; however, the “independent determination” requirement for issuing a search warrant also governs the issuance of arrest warrants. See People v Burrill, 391 Mich 124, 132 (1974); Giordenello v United States, 357 US 480, 485-486 (1958).

⁵The probable cause standard for arrests is different and distinct from the probable cause standard required to bind over a defendant after a preliminary examination. People v Cohen, 294 Mich App 70, 74 (2011). “‘[T]he arrest standard looks only to the probability that the person committed the crime as established at the time of the arrest, while the preliminary [examination] looks both to that probability at the time of the preliminary [examination] and to the probability that the government will be able to establish guilt at trial.’” Id. at 76, quoting LaFave & Israel, Criminal Procedure (2d ed, 1992), § 14.3, pp 668-669.

⁶Because the due process protections for both search warrants and arrest warrants derive from the same source, the Fourth Amendment, “probable cause” in either context requires the same precautions. Giordenello v United States, 357 US 480, 485-486 (1958). Unlike MCL 764.1a(3), however, the statute controlling the probable cause supporting a search warrant, MCL 780.653, expressly specifies that an affidavit must contain allegations that a named informant spoke with personal knowledge or that an unnamed informant spoke with personal knowledge and either that the unnamed person is credible or that the information is reliable.

⁷ The 1989 Staff Comment to MCR 6.102 states that “[a]n objective of [MCR 6.102(B)] is to ensure that there is a reviewable record in the event that the probable cause determination is subsequently challenged. Accordingly, if any oral testimony is relied on, it must be preserved adequately in some fashion to permit a review of its sufficiency to support the probable cause determination. An electronically recorded or verbatim written record obviously satisfies this requirement. A written or recorded oral summary of the testimony sufficiently contemporaneous to be reliable, and certified as accurate by the judicial officer, may also satisfy this requirement.”

⁸Even though MCR 1.109 is a rule governing civil procedure, the rule may also be applied to matters of criminal procedure. See MCR 6.001(D), which states, in pertinent part: “The provisions of the rules of civil procedure apply to cases governed by this chapter [(Criminal Procedure)], except