STATE OF MICHIGAN

FRANK J. KELLEY, ATTORNEY GENERAL

Opinion No. 6296

May 21, 1985

ARRESTS:

Warrantless misdemeanor arrest for spouse abuse

CONSTITUTIONAL LAW:

Warrantless misdemeanor arrest for spouse abuse not committed in presence of peace officer

CONSTITUTION OF THE UNITED STATES:

Am IV--warrantless misdemeanor arrest for spouse abuse not committed in presence of peace officer

CONSTITUTION OF MICHIGAN:

Art 1, Sec. 11--warrantless misdemeanor arrest for spouse abuse not committed in presence of peace officer.

A peace officer may make an arrest for spouse abuse committed outside the officer's presence, without a warrant, if based upon the complaining victim's testimony and corroborating physical evidence which leads the officer to believe an assault or an assault and battery has taken place. MCL 764.15a; MSA 28.847(1), which authorizes such a misdemeanor arrest, is constitutional under US Const and Const 1963.

Honorable Basil Brown

State Senator

The Capitol

Lansing, Michigan

You have requested my opinion on the following question:

The problem of spouse abuse, spans hundreds of years. Unfortunately, courts did not always deal with such abuse in an enlightened manner. At the early common law, a husband 'might correct her (wife) with a stick as thick as his own thumb.' James v Commonwealth, 12 S. and Rawle, 226 (nd) cited in 25 American Law Review 551, 557 (1891). Approval of such conduct was grounded in the archaic doctrine of coverture which made the husband answerable for his wife's torts and criminal misconduct. The early common law rule of spouse abuse, however, was never approved by the Michigan Supreme Court.

In the United States, the status of spouse abuse has undergone a great change. Historically, the early American cases followed the English common law rule and allowed discipline in the form of bodily punishment. In 1824, the Mississippi Supreme Court held in a spouse abuse case that it was better to tolerate some violence than to uncloak the veil of marital privacy and expose the characters and their secrets to public shame. Bradley v State, 1 Walker, 156 (Miss, 1824).

But, slightly less than 50 years later, the custom of wife beating was vehemently condemned in Fulgham v State, 46 Ala 143, 145-146 (1871), where the court ruled: 'The common law right of wife whipping does not prevail in Alabama.' Citing Blackstone, the court noted that the right to moderately correct one's wife was confined to 'the lower rank of the people, who were always fond of the old common law.' 4 Bla. Com. 44, 445 (nd). The court admonished that neither the husband nor his wife is allowed by law to use a weapon, or any other means upon the other for any purpose. As such, either spouse might be indicted for assault and battery upon the other.

By the twentieth century, most states recognized a wife's cause of action for spouse abuse and forty-nine states and the District of Columbia have, since 1974, enacted legislation to provide legal remedies to victims of domestic violence. 21 Harv J on Legis 61 (Wint. 84).

Cognizant of the problem of domestic assault, the Legislature, in 1978, enacted MCL 764.15a; MSA 28.874(1), as amended by 1980 PA 471, to provide:

To examine the constitutionality of these provisions, a three part analysis will be employed. Const 1963 and relevant Michigan case law will be examined. Secondly, an examination of US Const and the way in which other jurisdictions have addressed the federal and state constitutional requirements will be undertaken. Finally, scrutiny of those jurisdictions that have actually decided cases involving domestic assault statutes will be conducted.

(A)

There is no Michigan appellate decision passing on the validity of MCL 764.15a; MSA 28.874(1).

Michigan has historically followed the common law rule that a warrantless arrest for a misdemeanor not committed in the presence of a peace officer was prohibited. Robison v Miner, 68 Mich 549; 37 NW21 (1888); Pinkerton v Verberg, 78 Mich 573; 44 NW 579 (1889); Odinetz v Budds, 315 Mich 512; 24 NW2d 193 (1946); and People v Dixon, 392 Mich 691; 222 NW2d 749 (1974). The common law rule of arrest was codified in MCL 764.15; MSA 28.874. In Robison v Miner, supra, the court intimated, by way of dictum, that a statute permitting an arrest for a misdemeanor not committed in the presence of the peace officer would violate the state constitution.

Subsequent to the Robison v Miner, supra, decision, however, the Michigan Supreme Court added the following gloss: '[I]n the absence of any statutory power or authority, an officer cannot arrest without a warrant, except on suspicion of felony, or in case of an actual breach of peace committed in the presence of the arresting officer.' (Emphasis added.) Burroughs v Eastman, 101 Mich 419, 420; 59 NW 817 (1894). Although the majority opinion distinguished the earlier Robison, supra, decision, McGrath, J. began his dissenting opinion: 'I am not prepared to overrule the doctrine of Robison v Miner . . .' 101 Mich at 427; 59 NW at 82. (Emphasis added.) See also, People v Dixon, 392 Mich 691, 697; 222 NW2d 749, 751 (1974).

Of late, the Michigan Supreme Court positively stated that which McGrath, J. observed implicitly. In People v Brooks, 405 Mich 225; 274 NW2d 430 (1979), the court began by citing MCL 764.15; MSA 28.874, which codifies the common law rule of arrest. The court noted, however, that 'the [misdemeanor committed in the] presence requirement may be modified by the Legislature. It is not of constitutional dimension.' 405 Mich at 241, n 5; 274 NW2d at 434, n 5. (Emphasis added.) Thus, judicial approval seems to be accorded the legislative prerogative to derogate the common law rule of arrest. Furthermore, the court in People v Hamoud, 112 Mich App 348, 351; 315 NW2d 866 (1981), lv den, 414 Mich 959 (1982), stated:

While the Legislature has not defined the term 'reasonable cause' in MCL 764.15a; MSA 28.874(1), it is noted that 'probable cause' for a warrantless arrest means any facts which would induce a fair-minded person of average intelligence to believe that the suspected person has committed a crime. People v Ward, 226 Mich 45, 50; 196 NW 971 (1924). It has also been held that 'reasonable cause' for an arrest without a warrant is equated with 'probable cause' and means such trustworthy information as would warrant a person of reasonable caution to believe that a person was guilty of the commission of a crime. People v Lombardi, 18 App Div 2d 177, 180; 239 NYS2d 161, 164 (1963); Greene v Brown, 535 F Supp 1096 (ED, NY 1982)

The terms 'reasonable cause' and 'probable cause' to make a warrantless arrest have been held to be synonymous. State v Merrill, 274 NW2d 99, 108 (Minn, 1978); State v Linkletter, 345 So 2d 452, 455 (La, 1977); and State v Klevgaard, 306 NW2d 185, 190, n 9 (ND, 1981).

Turning to Const 1963, '[t]he Michigan Constitution is not a grant of power to the Legislature as is the United States Constitution, but rather, it is a limitation on general legislative power.' Advisory Opinion on Constitutionality of 1976 PA 240, 400 Mich 311, 317-318; 254 NW2d 544, 546 (1977). Since Const 1963 contains no section limiting the effect of MCL 764.15a; MSA 28.874(1), it is presumed valid. Gratiot County v Federspiel, 312 Mich 128; 20 NW2d 131 (1945).

Const 1963, art 1, Sec. 11, contains language similar to that in the US Const, Am 4. It provides in part:

Research discloses no Michigan appellate decision that has tested the constitutionality of domestic abuse legislation against this section.

Finally, the Michigan Supreme Court held that the Legislature may, consonant with Const 1963, art 3, Sec. 7, modify the common law. Placek v City of Sterling Heights, 405 Mich 638; 275 NW2d 511 (1978). As such, MCL 764.15; MSA 28.874(1), being duly promulgated by the Legislature, is a valid derogation of the common law rule of arrest and is constitutional under Const 1963.

(B)

The above conclusion is supported by decisions of federal courts and decisions of other state courts as well.

US Const, Am IV, provides:

In ascertaining the legality of an arrest, federal courts have interpreted US Const, Am IV, in the following manner: 'An arrest without a warrant is constitutionally valid [under the Fourth Amendment] if at the moment the arrest was made arresting officers had probable cause to make it.' US v Lipscomb, 435 F2d 795, 799 (CA 5, 1970), cert den, 401 US 980; 91 S Ct 1213; 28 L Ed 2d 331, reh den, 402 US 966; 91 S Ct 1635; 29 L Ed 2d 131 (1971); US v Allen, 629 F2d 51 (CA DC, 1980); US v Martin, 509 F2d 1211 (CA 9, 1975), cert den, 421 US 967; 95 S Ct 1958; 44 L Ed 2d 455 (1975).

At the common law, 'a police officer may arrest without warrant one believed by the officer upon reasonable cause to have been guilty of a felony, and that he may only arrest without a warrant one guilty of a misdemeanor if committed in his presence.' Carroll v US, 267 US 132, 156; 45 S Ct 280, 286; 69 L Ed 543, 553 (1924). The condition that a misdemeanor must have occurred in the officer's presence, to justify the arrest, however, is not grounded in the Fourth Amendment. Street v Surdyka, 492 F2d 368, 371-372 (CA 4, 1974); Diamond v Marland, 395 F Supp 432, (SD Ga 1975); 2 W. La Fave, Search and Seizure, Sec. 5.1 (1978). It is noted that in passing upon the validity of a warrantless misdemeanor arrest under US Const, Am IV, the court in People v Burdo, 56 Mich App 48, 52; 223 NW2d 358, 360 (1974), observed that a misdemeanor arrest based upon probable cause for driving under the influence of intoxicating liquor outside the officer's presence, was not constitutionally invalid, citing Street v Surdyka, supra.

Recently, in Welsh v Wisconsin, ---- US ----; 104 S Ct 2091, 2101; 80 L Ed 2d 732, 747 (1984), Justice White, dissenting, noted that 'we have never held that a warrant is constitutionally required to arrest for nonfelony offenses occurring out of the officer's presence.'

Under the foregoing authorities, no US Const, Am IV infirmity exists in statutory authorization for warrantless arrests based upon probable cause for domestic assault misdemeanors committed outside the peace officer's presence.

A number of state cases have evaluated the legality of arrests for misdemeanors committed outside the peace officer's presence. Of these, most involved statutory authorization for such arrests. The states have differed, however, in their analysis and final conclusions whether or not such authorization is permissible.

Among those finding such statutory authorization permissible under their state constitutions are: State v Berker, 120 RI 849; 391 A2d 107 (1978) [arrest for drunk driving committed outside the officer's presence upheld under RI Const, art 1, Sec. 6, conviction reversed on other grounds]; Sims v Smith, 115 Conn 279, 282-283; 161 A 239, 240-241 (1932) [stating the rule in the context of an arrest for adultery committed outside officer's presence upheld under Conn Const, art 1, Sec. 10]; and finally, State v Vollmar, 389 SW2d 20 (Mo 1965) [arrest for possession of obscene materials upheld implicitly under Mo Const, art 1, Sec. 15 which prohibits only unreasonable searches and seizures]. It is noted that the state constitutional provisions are similar to Const 1963, art 1, Sec. 11.

The recent Supreme Court decision of US v Sharpe, ---- US ----; 105 S Ct 1568; 84 L Ed 2d 605 (1985), echoes the Vollmar rationale on the federal level:

Cases that have not passed on the constitutionality of, but have nevertheless upheld statutory derogation of the common law rule of misdemeanor arrests, include: Hanser v Bieber, 27 Mo 326; 197 SW 68 (Mo banc, 1917) [breach of the peace committed outside the officer's presence]; People v Roberta, 352 Ill 189; 185 NE 253 (1933) [connection with prostitution]; Rickards v State, 45 Del 573; 77 A2d 199 (1950) [drunk driving committed outside the officer's presence]; State v Burns, 306 A2d 8 (Me 1973) [possession of marijuana]; State v Taylor, 22 Wash App 308; 589 P2d 1250 (1979) [unlawful theft of services committed outside the officer's presence]; State v Martin, 275 SC 141; 268 SE2d 105 (1980) [drunk driving committed outside the officer's presence]. See also, Lawrence v Henderson, 344 F Supp 1287 (ED La 1972), aff'd, 478 F2d 705; reh den, 481 F2d 1403 (1973).

Those cases that have held invalid statutory derogation of the common law rule of misdemeanor arrests under their own state constitutions include: Polk v State, 167 Miss 506; 142 So 480 (1932) [possession of intoxicating liquor]; and In Re Kellam, 55 Kan 700; 41 P 960 (1895) [selling intoxicating liquor].

Research reveals that Polk, supra, has not been followed by any other recent state court decision, and subsequent events in Kansas have raised questions about the continued validity of Kellam, supra. In Polk, supra, 142 So at 481, the court held:

Although section 23 of the Mississippi Constitution, now art 3, Sec. 23, reads almost identically to US Const, Am IV, a state is free to 'adopt in its own Constitution individual liberties more expansive than those conferred by the Federal Constitution.' Pruneyard Shopping Center v Robins, 447 US 74, 81; 100 S Ct 2035, 2040; 64 L Ed 2d 741 (1980); Cooper v California, 386 US 58, 62; 87 S Ct 788, 791; 17 L ed 2d 730 (1967).

Since the time In Re Kellam, supra, was decided, the Kansas Supreme Court held that US Const, Am IV and section 15 of the Kansas Bill of Rights were to be construed identically. State v Wood, 190 Kan 778, 788; 378 P2d 536, 544 (1963).

In Re Kellam, supra, and its progeny have relied upon section 15 of the Kansas Constitution in striking down statutory derogation of the common law rule of arrest. It is noted, however, that '[s]ince the contours of Section 15 of the Kansas Bill of Rights are treated coextensively with those of the Fourth Amendment, Kellam is almost certainly no longer good law.' 31 U Kan L Rev 527, 540 (1983).

The Kansas Legislature has derogated the common law rule of arrest and now authorizes warrantless misdemeanor arrests for certain offenses committed outside the officer's presence. KSA, Sec. 22-2401.

Several other cases, relying only upon the common law, have either invalidated legislative attempts to derogate the common law rule of arrest, or proclaimed the common law rule of arrest as the law of the state. These include: Wynkoop v Mayor & City Council of Hagerstown, 159 Md 194; 150 A 447 (1930) [assault and battery of spouse]; Street v Surdyka, supra, [assault]; and Gunderson v Struebing, 125 Wis 173; 104 NW 149 (1950) [petit larceny].

In Surdyka, supra, while recognizing that there is no US Const, Am IV infirmity with legislative derogation of the common law rule of arrest, the federal court of appeals was bound to apply Maryland law, which at that time prohibited arrests in this manner. The court did note, however, that 'Maryland courts have criticized the continued use of the common law rule as impractical and illogical, and have invited the state legislature to adopt new rules.' Surdyka, supra, 492 F2d at 372. The Maryland Legislature, indeed, has adopted 'new rules' of arrest providing for warrantless arrests for certain statutorily delineated misdemeanors committed outside the officer's presence. Ann. Code Maryland, art 27, Sec. 594B.

Wisconsin, in 1969, amended its law of arrest and WSA 968.07, provides, inter alia, that a law enforcement officer may arrest a person when there are reasonable grounds to believe that the person is committing or has committed a crime. The official comment to this amendment states:

Finally, in 45 Wis OAG 289, 291 (1956), the Wisconsin Attorney General concluded that warrantless arrests committed outside the officer's presence were permissible for certain misdemeanor traffic offenses upon probable cause.

One other decision held illegal under US Const, Am V, an attempt by a peace officer to make an arrest for a misdemeanor violation of the U.S. Selective Draft Act committed outside the officer's presence. The court, in Ex Parte Jones, 84 Tex Crim 497; 208 SW 525 (1919), found that nothing in the provisions of the federal act authorized such arrests. Accordingly, the defendant's arrest and subsequent six-day incarceration were held to violate his federal due process rights.

In 1981, Texas amended its law of arrest and now provides for warrantless arrest for various misdemeanor offenses committed outside the officer's presence. Tex Vern Ann CCP, art 14.03. For a discussion of this section and other recent Texas legislation in the area of domestic assault, see, 20 Hous L Rev 1279 (1983).

From the survey of jurisdictions, the majority and better reasoned rule is to allow warrantless arrests for statutorily delineated misdemeanors committed outside the officer's presence.

(C)

To date, research indicates two jurisdictions have passed on domestic abuse legislation sanctioning arrests for misdemeanors committed outside the peace officer's presence. One other jurisdiction passed on the validity of an assault and battery statute that coincidentally arose in a domestic scenario.

In 1967, Ohio derogated the common law and provided for arrest by an officer if he 'had reasonable cause' to believe that a 'violation of Section 2901.25 (assault & battery) has been committed.' City of Columbus v Herrell, 18 Ohio App 2d 149; 247 NE2d 770, 772 (1969). In Herrell, supra, the officer responded to a call from an abused wife, and on the basis of her testimony and physical evidence, including her appearance, determined that there existed reasonable cause to make a warrantless misdemeanor arrest of her spouse. The court also determined that reasonable cause was synonomous with probable cause. With this condition satisfied, the court concluded that there was no constitutional infirmity under Ohio Const, art 1, Sec. 16 and US Const, Am IV, both of which prohibit unreasonable searches and seizures, with this legislation, authorizing this type of arrest.

The first state to pass on the validity of specific domestic abuse legislation was Florida. LeBlanc v State, 382 So 2d 299 (Fla, 1980). There, section 901.15, Fla Stat (1977), was challenged. It provides that:

The defendant challenged the statute on equal protection grounds, contending, in substance, that the classification delineating spouses, which failed to include other household members, constituted a fragmentary and irrational classification. The court summarily rejected this contention, holding that there was no reason why the statute must apply to all parties who might be affected by domestic violence. LeBlanc, supra, 382 So 2d at 300. The court went on to note that: 'An arrest is properly authorized under Sec. 901.15(6) if officers have reason to believe that one has committed a battery upon his or her spouse and the officers either find evidence of bodily harm or reasonably believe that the victimized spouse would be placed in further danger if the assailant was not arrested without delay.' LeBlanc v State, 382 So 2d at 300.

The latest judicial review of domestic abuse legislation is State ex rel, Williams v Marsh, 626 SW2d 223 (Mo banc 1982). There, the defendant challenged the validity of an ex parte protection order issued under the authority of 455.040, RS Mo Supp 1980. The operative effect of the protective order is to restrain the husband from entering his dwelling or making contact with his children for a period of fifteen days, at which time a hearing is mandated. Any violation during that period is a misdemeanor. 455.085, RS Mo Supp 1980.

The trial court struck down the statute on due process grounds and the wife sought a writ of mandamus compelling the issuance of the order. The trial court found that the due process guarantees of the US Const, Am XIV were offended by permitting a respondent to be deprived of constitutionally protected interests (home, children) prior to notice or an adversarial hearing. The Missouri Supreme Court rejected this holding, finding that the due process guarantee was flexible and that this was a reasonable accommodation of the private interest vis a vis the police power. Accordingly, upon filing a petition showing 'good cause,' the court was required to issue an ex parte order restraining the abusive spouse from entering his premises. 455.035, RS Mo Supp 1980.

Most importantly, the court addressed the issue of warrantless arrests. The court summarily upheld the warrantless arrest authorized by 455.085 RS MD Supp 1980, upon probable cause for violating a protection order (a misdemeanor), but required further, that if the arrest occurs in the home, it must be based on consent to enter the home, or exigent circumstances, citing Payton v New York, 445 US at 590; 100 S Ct at 1382; 63 L Ed 2d at 653 (1980).

The common threads that run through LeBlanc, Williams, and Herrell are: 1) statutory authority derogating the common law rule permitting warrantless arrests for misdemeanors committed outside the officer's presence; and 2) probable cause/reasonable cause provided by the victim's statement and physically corroborating evidence.

In Florida (LeBlanc), physical corroboration is mandated by statute, FSA 901.15, supra. In Missouri (Williams), it is used in determining if there is 'good cause shown' to issue an ex parte protection order. Finally, in Ohio (Herrell), the victim's testimony and physical evidence were utilized in determining whether probable cause to make the warrantless misdemeanor arrest existed.

In the absence of legislative definition, the 'reasonable cause' requirement for a warrantless misdemeanor arrest for spouse abuse authorized by MCL 764.15a; MSA 28.874(1), should be given a reasonable construction. People v Gagnon, 129 Mich App 678; 341 NW 867 (1983); US v Harris, 347 US 612, 618; 74 S Ct 808; 98 L Ed 989 (1954). In light of the decisions in Herrell, Williams and LeBlanc, MCL 764.15a; MSA 28.874(1), should be read that there be the complaining victim's statement and some corroborating physical evidence which together rise to the level of probable cause for the peace officer to believe an assault or an assault and battery has taken place in contravention to this statute.

A warrantless misdemeanor arrest made pursuant to MCL 764.15a; MSA 28.874(1), as applied, would pass muster under US Const, Am IV and Const 1963, art 1, Sec. 11, as long as: 1) the peace officer lawfully enters the dwelling house, the domestic abuse is in a public place, or otherwise in plain view; and 2) there is the complaining victim's statement and some corroborating physical evidence of domestic abuse which together rise to the level of probable cause.

It is my opinion, therefore, that MCL 764.15a; MSA 28.874(1), is constitutional under test of US Const and Const 1963.

Frank J. Kelley

Attorney General