3.2Arrest

A.Purpose and Function of an Arrest Warrant

The purpose of an arrest warrant is to bring the defendant to appear before the court on an accusation charged in a complaint. See MCL 764.1b. A complaint is the charging instrument which, once accepted by the court, formally sets forth the charge against the defendant and constitutes the basis for all further action to be taken by the court in the case. See MCL 761.1(c). The complaint recites the substance of the accusation against the accused and may contain factual allegations establishing reasonable cause. Id.; MCL 764.1d.

An arrest warrant is the order by the court to arrest a defendant and bring him or her before the court to answer the charge alleged in the complaint. MCL 764.1b. Under certain circumstances, a person may be arrested without an arrest warrant. See MCL 764.15; MCL 764.15a; MCL 764.15b; MCL 764.15e; MCL 764.15f; MCL 764.16. See Section 3.2(B) and Section 3.15 for a discussion of warrantless arrests.

For a summary of the arrest warrant process, see the Michigan Judicial Institute’s checklist describing the process for issuing an arrest warrant and the checklist describing the process for electronically issuing an arrest warrant.

B.Probable Cause for Warrantless Arrest

“‘A police officer may arrest an individual without a warrant if a felony has been committed and the officer has probable cause to believe that individual committed the felony.’” People v Tierney, 266 Mich App 687, 705 (2005), quoting People v Kelly, 231 Mich App 627, 631 (1998). “The existence of probable cause is determined by the totality of the circumstances.” People v Nguyen, 305 Mich App 740, 752 (2014) (citations omitted). “The constitutional validity of an arrest depends upon whether, at the moment the arrest was made, the officers had probable cause to make it–whether at that moment the facts and circumstances within their knowledge and of which they had reasonably trustworthy information were sufficient to warrant a prudent man in believing that the defendant had committed or was committing an offense.” People v Trapp, 335 Mich App 141, 166-167 (2020) (cleaned up). “‘The prosecution has the burden of establishing that an arrest without a warrant is supported by probable cause.’” Tierney, 266 Mich App at 705, quoting People v Davenport, 99 Mich App 687, 691 (1980).

“Because distinctly different probable-cause standards distinguish . . . arrest and bind-over decisions,” a district court’s conclusion that it lacked probable cause to bind a defendant over for trial on the charge for which he was arrested did not necessarily render the arrest itself invalid. People v Cohen, 294 Mich App 70, 72, 76-77 (2011) (circuit court erroneously concluded that in the absence of probable cause to bind the defendant over for trial on charge of possession of cocaine, police lacked probable cause to arrest for that offense, and that evidence of additional crime obtained following arrest therefore must be suppressed; police had probable cause to arrest based on the defendant’s joint constructive possession of cocaine paraphernalia, which was observed in plain view and within the defendant’s reach in car occupied by only driver and the defendant, and evidence discovered after the constitutionally valid arrest was admissible in prosecution for additional offense).

See Section 3.15 for statutory provisions that provide for warrantless arrests.

C.Delay Between Crime and Arrest

The Speedy Trial Clause of the Sixth Amendment does not protect the defendant against lengthy prearrest delay, only from pretrial delay following an arrest. United States v Lovasco, 431 US 783, 788 (1977).¹ Generally, a defendant is protected against unreasonable prearrest delay by the applicable statute of limitations. People v Bisard, 114 Mich App 784, 788-789 (1982). A delay between an offense and the arrest of the defendant may violate the defendant’s federal and state due process rights. People v Cain, 238 Mich App 95, 109 (1999). The due process inquiry must consider the reasons for the delay as well as the prejudice to the defendant. Lovasco, 431 US at 790. A delay in bringing charges against a defendant may deny the due process right to a fair trial if the prosecutor delays to gain a tactical advantage or to deprive the defendant of an opportunity to defend against the charges. Id. at 797 n 19.

“A prearrest delay that causes substantial prejudice to a defendant’s right to a fair trial and that was used to gain tactical advantages violates the constitutional right to due process” People v Woolfolk, 304 Mich App 450, 454 (2014), aff’d on other grounds 497 Mich 23 (2014). “Michigan applies a balancing test to determine if a prearrest delay requires reversing a defendant’s conviction because the state may have an interest in delaying a prosecution that conflicts with a defendant’s interest in prompt adjudication of the case.” Cain, 238 Mich App at 108. Under this balancing test, the defendant bears the burden of “initially demonstrat[ing] ‘actual and substantial’ prejudice to his right to a fair trial.” People v Adams, 232 Mich App 128, 134 (1998).

An “oppressive” delay between the alleged crime and the defendant’s arrest may implicate a defendant’s due process rights and lead to a motion to dismiss. People v Tanner, 255 Mich App 369, 414 (2003), rev’d on other grounds 469 Mich 437 (2003),² overruled on other grounds People v Kennedy, 502 Mich 206 (2018). In deciding the motion, the court must balance the actual prejudice to the defendant with the prosecutor’s reasons for the delay. Cain, 238 Mich App at 108-109; Bisard, 114 Mich App at 790-791.

The defendant must produce evidence that he or she sustained “actual and substantial” prejudice because of the delay. Cain, 238 Mich App at 108; Bisard, 114 Mich App at 791. “Actual and substantial” prejudice means that the defendant’s ability to defend against the charges was “meaningfully impaired” by the delay. Cain, 238 Mich App at 110; Bisard, 114 Mich App at 788. “[P]roof of ‘actual and substantial’ prejudice requires more than generalized allegations[.]” Adams, 232 Mich App at 135. “Defendant must present evidence of actual and substantial prejudice, not mere speculation.” Woolfolk, 304 Mich App at 454. “A defendant cannot merely speculate generally that delay resulted in lost memories, witnesses, and evidence[.]” Id.

The following cases discuss actual and substantial prejudice:

• People v Adams, 232 Mich App 128 (1998)

The death of a witness or the loss of physical evidence alone are insufficient to establish actual prejudice. Id. at 136-138. “[A] defendant does not show actual prejudice based on the death of a potential witness if he has not given an indication of what the witness’s testimony would have been and whether the substance of the testimony was otherwise available.” Id. at 136 (quotation marks and citation omitted).

Additionally, a 12-year delay did not violate the defendants’ due process rights where physical evidence was lost, but its potentially exculpatory value was unsubstantiated. Id. at 132-139.

• People v Cain, 238 Mich App 95 (1999)

Defendant was unable to establish unfair prejudice during 16-month delay where witnesses had slight memory failure and evidence that was unrelated to the case was thrown away. Id. at 107-111.

• People v Patton, 285 Mich App 229 (2009)

Defendant was unable to establish actual and substantial prejudice because he did not identify any specific prejudice; rather, he made general allegations that the prearrest delay prevented him from contacting witnesses but gave no details on the substance of a defense to the charge, or details regarding how the witnesses would have supported a defense. Id. at 236-237.

• People v Scott, 324 Mich App 459 (2018)

“[S]peculations regarding a possible alibi and the potential for adverse sentencing consequences do not constitute actual and substantial prejudice to defendant’s right to a fair trial[.]” Id. at 463. An assertion by a defendant that delay in bringing charges resulted in prejudice regarding sentencing due to an earlier plea agreement regarding separate charges was insufficient to establish prejudice. Id. at 463, 464. “When considering whether a defendant was prejudiced by a delay in pursuing charges, ‘[w]hat must be kept in mind is that the prejudice to the defendant must impair his right to a fair trial, not merely that it has an adverse impact upon the sentence imposed upon the defendant.’” Id. at 465, citing People v Ervin, 163 Mich App 518, 520 (1987) (alteration in original).

Once the defendant has made a showing of prejudice, the prosecution has the burden of persuading the court that the reasons for the delay justified any prejudice that resulted. Cain, 238 Mich App at 109; Bisard, 114 Mich App at 791. In evaluating the reason for the delay, the court may consider the explanation for the delay, whether the delay was deliberate, and whether undue prejudice attached to the defendant. Bisard, 114 Mich App at 786-787, 791.

“When a delay is deliberately undertaken to prejudice a defendant, little actual prejudice need be shown to establish a due process claim. Where, however, there is a justifiable reason for the delay, the defendant must show more—that the prejudice resulting from the delay outweighs any reason provided by the state.” Bisard, 114 Mich App at 790.

“It is appropriate for a prosecuting attorney to wait for the collection of sufficient evidence before charging a suspect, even when that wait is extended by the disappearance of a key witness.” Woolfolk, 304 Mich App at 452-456 (a nearly five-year delay in arresting the defendant for a murder “was reasonable and justified under the circumstances” where the principal witness originally told the police that he did not know who shot the victim, then disappeared for several years and was convicted of an unrelated crime out-of-state before making a statement implicating the defendant; the officer in charge of the murder case, who “had [no] reason to believe that [the witness] was not being truthful” in his original interview, “was not aware that [the witness] was about to disappear,” and “the prosecution lacked access to and jurisdiction over” the witness during the time he was being prosecuted out-of-state).

D.Delay Between Warrantless Arrest and Arraignment

Persons arrested without a warrant must be promptly brought before a neutral magistrate for a probable cause determination. People v Cipriano, 431 Mich 315, 319 (1988); MCL 764.13; MCL 764.26; MCR 6.104(A).

“[A] jurisdiction that provides judicial determinations of probable cause within 48 hours of [a warrantless] arrest will, as a general matter, [be found to] comply with the promptness requirement” of the federal constitution’s Fourth Amendment. Riverside Co v McLaughlin, 500 US 44, 56 (1991). However, a probable cause determination is not automatically proper simply because it is made within 48 hours. Id. at 56. A delay of less than 48 hours may still be unconstitutional if it is an unreasonable delay. Id.

Police authorities may only hold an arrestee for more than 48 hours before arraignment if they can “‘demonstrate the existence of a bona fide emergency or other extraordinary circumstance’” that would justify the delay. People v Whitehead, 238 Mich App 1, 2 (1999), quoting Riverside Co v McLaughlin, 500 US 44, 57 (1991).

See also People v Cain (Cain I), 299 Mich App 27, 49-50 (2012), vacated in part on other grounds by People v Cain (Cain II), 495 Mich 874 (2013)³ (the defendant was not deprived of due process despite not being arraigned until three days after his arrest where “no evidence was obtained as a direct result of the ‘undue delay,’ which would have begun . . . 48 hours after [the] defendant’s arrest;” because the evidence against the defendant, including his statement to police and his identification from a photo lineup, was obtained within 48 hours after his arrest, “there was no evidence to suppress”).

E.Standard of Review

A trial court’s decision on a motion to dismiss on the basis of prearrest delay is reviewed for an abuse of discretion. People v Herndon, 246 Mich App 371, 389 (2001). To the extent that a claim of prearrest delay implicates constitutional due process rights, it is reviewed de novo. People v Cain, 238 Mich App 95, 108 (1999). The trial court’s related factual findings are reviewed for clear error. People v Tanner, 255 Mich App at 412, rev’d on other grounds 469 Mich 437 (2003),⁴ overruled on other grounds People v Kennedy, 502 Mich 206 (2018).