3.15Circumstances Allowing Warrantless Arrests

A peace officer may make a warrantless arrest if a felony, misdemeanor, or ordinance violation is committed in the officer’s presence. MCL 764.15(1)(a). Under MCL 764.15, a peace officer may also make a warrantless arrest for certain offenses not committed in his or her presence when:

•A person has committed a felony outside the presence of the officer, MCL 764.15(1)(b).

•A felony in fact has been committed and the officer has reasonable cause¹ to believe the person committed it, MCL 764.15(1)(c).

•The officer has reasonable cause to believe that a misdemeanor punishable by more than 92 days’ imprisonment or a felony has been committed, and reasonable cause to believe the person committed it, MCL 764.15(1)(d).

•      The officer receives positive information from a written, telegraphic, teletypic, telephonic, radio, electronic, or other authoritative source that another officer or a court holds a warrant for the person’s arrest, MCL 764.15(1)(e).

•The officer receives positive information broadcast from a recognized police or other governmental radio station or teletype, that affords the officer reasonable cause to believe that a misdemeanor punishable by more than 92 days’ imprisonment or a felony has been committed and that the person committed it, MCL 764.15(1)(f).

•      The officer has reasonable cause to believe that the person is an escaped convict, has violated a condition of parole from a prison, has violated a condition of a pardon, or has violated one or more conditions of a conditional release order or probation order by any court of any state, Indian tribe, or United States territory, MCL 764.15(1)(g).

•The officer has reasonable cause to believe the person was involved in an accident in Michigan while operating a vehicle and (1) while under the influence of alcoholic liquor, a controlled substance, or other intoxicating substance, or any combination thereof, (2) with an unlawful bodily alcohol content, (3) while visibly impaired, (4) with any bodily alcohol content if the person is under 21, or (5) while violating certain provisions in MCL 257.625 and having occupants under age 16 in the vehicle. MCL 764.15(1)(h). Warrantless arrest authority also extends to violations of substantially corresponding local ordinances. Id.

•The officer has reasonable cause to believe the person was involved in an accident in Michigan while operating a commercial vehicle and with an unlawful bodily alcohol content under MCL 257.625m, or violating a substantially corresponding local ordinance. MCL 764.15(1)(h).

•The person is found in the driver’s seat of a stopped or parked vehicle on a highway or street that in any way intrudes into a roadway, and the officer reasonably believes the person was operating the vehicle (1) while under the influence of alcoholic liquor, a controlled substance, or other intoxicating substance, or any combination thereof, (2) with an unlawful bodily alcohol content, (3) while visibly impaired, (4) with any bodily alcohol content if the person is under 21, or (5) while violating certain provisions in MCL 257.625 and having occupants under age 16 in the vehicle. MCL 764.15(1)(i). Warrantless arrest authority also extends to violations of substantially corresponding local ordinances. Id.

•The person is found in the driver’s seat of a stopped or parked commercial vehicle on a highway or street that in any way intrudes into a roadway, and the officer reasonably believes the person was operating the vehicle and with an unlawful bodily alcohol content under MCL 257.625m, or violating a substantially corresponding local ordinance. MCL 764.15(1)(i).

•The officer has reasonable cause to believe the person was involved in an accident in Michigan while operating a snowmobile, off-road vehicle (ORV), or vessel (1) while under the influence of intoxicating liquor or a controlled substance, or both (2) with an unlawful bodily alcohol content, or (3) while visibly impaired. MCL 764.15(1)(j)-(l). Warrantless arrest authority also extends to violations of substantially corresponding local ordinances. Id.

•      The officer has reasonable cause to believe retail fraud has occurred, and the person committed the retail fraud, whether or not committed in the officer’s presence, MCL 764.15(1)(m).

•      The officer has reasonable cause to believe that a misdemeanor has occurred or is occurring on school property, and the person committed or is committing the misdemeanor, whether or not committed in the officer’s presence, MCL 764.15(1)(n).

Other statutes also allow a peace officer to make a warrantless arrest when a criminal offense or violation of a court order allegedly occurred:

•MCL 764.15a authorizes a peace officer to make a warrantless arrest in a case involving domestic assault and aggravated domestic assault.² The officer may arrest a person regardless of whether the violation takes place in his or her presence, as long as the arresting officer has or receives positive information that another officer has reasonable cause to believe both of the following:

(1)             the violation occurred or is occurring; and

            (2) the individual arrested has had a child in common with the victim, resides or has resided in the same household as the victim, is or has had a dating relationship with the victim, or is a spouse or former spouse of the victim.

•MCL 764.15b authorizes a peace officer to make a warrantless arrest for the violation of a personal protection order (PPO) or a valid foreign protection order (FPO) if the officer has or receives positive information that another officer has reasonable cause to believe all of the following:

•a PPO has been issued under either the domestic or nondomestic PPO statute, or is a valid FPO;

•the individual named in the PPO is violating or has violated the order (the act must be specifically prohibited in the order); and

•the PPO states on its face that a violation of its terms subjects the individual to immediate arrest and either of the following:

•if the individual is 18 years of age or older, to criminal contempt sanctions of imprisonment for not more than 93 days and to a fine of not more than $500; or

•         if the individual is less than 18 years of age, to the dispositional alternatives in MCL 712A.18 of the Juvenile Code.

•MCL 764.15e allows a peace officer to make a warrantless arrest of a person if the officer has or receives positive information that another officer has reasonable cause to believe that the person is violating or has violated a condition of release imposed under MCL 765.6b or MCL 780.582a (governing pretrial conditional release). See also MCL 764.15(1)(g) (allowing warrantless arrest of person violating postconviction conditional release).

•MCL 764.15f allows a peace officer to make a warrantless arrest of a person if the officer has reasonable cause to believe all of the following:

•the Family Division issued an order under MCL 712A.13a(4) (requiring certain adults to leave the home pending the outcome of child protective proceedings), and the order specifically stated the time period for which the order was valid;

•a true copy of the order and proof of service have been filed with the law enforcement agency having jurisdiction of the area where the person who has custody of the child resides;

•the person named in the order received notice of the order;

•the person named in the order violated the order;

•the order specifically states that a violation will subject the person to criminal contempt sanctions, including up to 90 days’ imprisonment and a $500 fine.

“Warrantless arrests that take place in public upon probable cause do not violate the Fourth Amendment.” People v Hammerlund, 504 Mich 442, 452 (2019). “[T]his standard applies when probable cause exists for a misdemeanor.” Id. at 452 (where the officer “personally observed damage to [a] guardrail and cement barrier near defendant’s abandoned vehicle,” and “defendant admitted to him that she was driving the car that caused the damage and that she did not report the accident to law enforcement,” the “information was more than adequate to provide the officer with probable cause to believe that the misdemeanor had been committed”).

In Hammerlund, “a police officer entered [defendant’s] home to complete her arrest for a [90-day] misdemeanor offense,” after “she reached out her doorway to retrieve her identification[.]” Hammerlund, 504 Mich at 446. Before entering the home, the officer “stood on [defendant’s] porch while she remained inside, approximately 15 to 20 feet away from the front door,” and defendant “passed [her identification] to [the officer] through a third party in the home.” Id. at 447, 448. Defendant did not “expose[] herself to public arrest by approaching the door and reaching out to retrieve her identification” because “there is a fundamental difference between the reasonable expectation of privacy of a person who voluntarily stands in an open doorway and the reasonable expectation of privacy of a person who remains inside the confines of her home, approaching the doorway only briefly and momentarily breaking the plane of the doorway with some portion of her arm or hand.” Id. at 458-459. “[D]efendant did not surrender her expectation of privacy because she did not expose herself to public view, speech, hearing, and touch as if she had been standing completely outside.” Id. at 459.

“The exigent circumstances exception to the warrant requirement contemplates the existence of an actual emergency.” People v Trapp, 335 Mich App 141, 167 (2020). In Trapp, officers responded to a call from a trailer park manager reporting a man with a gun on the premises. Id. at 144. After being informed by the manager that the man with the gun was inside a nearby trailer with a group of kids nearby, “[t]he police ordered the males in the trailer to come outside with their hands visible. Defendant . . . complied, and within minutes, he was spun around and handcuffed.” Id. at 144-145. Defendant resisted and was charged with a felony. Id. at 145. “When the police arrived at the trailer park, there were no signs of children or unrest. It was after 10:30 p.m. and the park appeared dark and quiet. If any children had been in danger when the manager called the police, the danger was over. The crime–a minor misdemeanor–was also complete.” Id. at 168. “The mere fact that children lived in the trailer park was not enough to have supported a search warrant for the trailer or an arrest warrant for its occupants. The police were investigating a misdemeanor involving the possession of a firearm. That a firearm might have been located within the trailer, standing alone, did not give rise to an emergency.” Id.at 168-169 (reversing defendant’s resisting and obstructing conviction and remanding for further proceedings consistent with the Court’s opinion).

A private person may make a warrantless arrest of another individual under the following circumstances:

•For a felony regardless of whether the felony is committed in his or her presence. MCL 764.16(a)–MCL 764.16(b).

•If summoned by a peace officer to assist the officer in making an arrest. MCL 764.16(c).

•If the private person is a merchant, agent of a merchant, employee of a merchant, or an independent contractor providing security for a merchant of a store and has reasonable cause to believe the other individual has committed retail fraud, regardless of whether the retail fraud occurred in his or her presence. MCL 764.16(d).