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Opinion No. 5236

October 20, 1977


Powers of peace officer


Exercise of powers by Attorney General

Inasmuch as the office of Attorney General has common law powers as the chief law enforcement officer of the State, he may exercise the powers of a peace officer and may appoint agents having this status to assist him in enforcing his powers and carrying out his functions.

Honorable Anthony A. Derezinski

State Senator

State Capitol Building

Lansing, Michigan 48902

You have requested my opinion as to whether criminal investigators employed by the Attorney General are peace officers with full power to enforce the general criminal laws of this State.

Neither the Michigan Constitution which provides for the creation of the office and sets its term and method of selection (1) nor the statutes, (2) which confer various duties on the Attorney General, provide a definition of the office.

In Mundy v McDonald, 216 Mich 444; 185 N.W. 887 (1921), the Supreme Court held that the Attorney General is a public officer with broad authority derived from the common law and added to or confirmed by statute.

At common law, the Attorney General possessed a wide range of powers and In re Lewis' Estate, 287 Mich 179; 283 N.W. 21 (1938), the Court stated:

'We must recognize the fact that the office of attorney general is ancient in its origin and history and it is generally held by the States of the Union that the attorney general has a wide range of powers at common law. These are in addition to his statutory powers.'

Those common law powers include but are not limited to:

'The right to investigate criminal acts, to institute proceedings in the several counties of the Commonwealth, to sign indictments, to appear before the grand jury . . . and to try criminal cases on the Commonwealth's behalf.'

Commonwealth ex rel Margiotti v Orsini, 368 Pa 259, 262; 81 A 2d 891, 892 (1951) quoted with approval from the case of Commonwealth ex rel Minerd v Margiotti, 325 Pa 17, 30, 31; 188 A 524; 530 (1936).

Thus, the Attorney General has responsibility, together with other peace officers, for enforcement of the laws and the preservation of the public peace. The Supreme Court of Minnesota in the case of Slezak v Ousdigian, 260 Minn 303; 110 N.W. 2d 1 (1971), stated that:

'The Attorney General is the chief law officer of the State. His powers are not limited to those granted by statute, but include extensive common law powers inherent in his office. He may institute, conduct and maintain all such actions and proceedings as he deems necessary for the enforcement of the laws of the State, the preservation or order and the protection of public rights.' 260 Minn at 308.

The Attorney General is recognized as the chief law enforcement officer of the State. Slezak v Ousdigian, supra., and Matson v Margiotti, 371 Pa 188; 88 A 2d 892 (1952).

In common speech the term 'law enforcement officer' is consistently used as synonymous with the term 'peace officer'. Thus the Supreme Court of Tenessee held the term 'peace officer' to be synonymous with 'law enforcement officer' in Frazier v Elmore, 180 Tenn 232; 173 S.W. 2d 563 (1943). North Dakota also reached the same conclusion in Bartles Northern Oil Co. v Jackman, 29 N.D. 236; 150 N.W. 576 (1915).

It may also be noted that the Law Enforcement Officers Training Council Act, MCLA 28.601 et seq; MSA 4.450(1) et seq, uses the terms interchangeable to define one 'who is responsible for the prevention and detection of crime and the enforcement of the general criminal laws of the state.' MCLA 28.602(c); MSA 4.450(2)(c).

I am award of the fact that, in dealing with the question of whether a prosecuting attorney is a peace officer, Attorney General Foss O. Eldred stated:

'The functions of the office of Prosecuting Attorney are carved from those of the Attorney General; originally he was the local assistant or deputy of the Attorney General, (citations omitted) and I can find no common law power of the Attorney General which could be said to make him, and hence his subordinate, a peace officer.' OAG 1947-1948, No. 05119, p 83 (October 21, 1946).

However, in an opinion dated April 8, 1946, Attorney General (later Chief Justice of the Michigan State Supreme Court) John R. Dethmers considered the question of what public officers were embraced within a provision of the Liquor Control Act which prohibited certain public officers from being issued liquor licenses. In this opinion Attorney General Dethmers stated:

'The more commonly recognized peace officers include prosecuting attorneys, sheriffs, their deputies and undersheriffs, constables, police officers, state police, village marshals, conservation officers, federal officers such as marshals, their deputies, special agents of the Bureau of Investigation, etc.' (Emphasis supplied). OAG, 1945-1946, No. 04226, p 663 (April 8, 1946).

Any conflict which existed between these two opinions may be considered as resolved by People v Bissonette, 327 Mich 349; 42 N.W. 2d 113 (1950), in which standards for determining which public officers are peace officers were set forth by the Michigan Supreme Court.

In Bissonette, the Supreme Court considered the question of whether conservation officers were peace officers and noted that:

'. . . By statute, a conservation officer has limited authority.

'Peace officers have general authority to operate in a broader field. Their powers have not been specifically defined by the statute law of this State.

"Peace Officers. This term is variously defined by statute in the different states; but generally it includes sheriffs and their deputies, constables, marshals, members of the police force of cities, and other officers whose duties is to enforce and preserve the public peace.'

"Public Peace. The peace or tranquility of the community in general; the good order and repose of the people composing a state or municipality.' Black's Law Dictionary (3d ed.), p. 1341.'

Bissonnette, supra, 327 Mich at 356-357.

The language from Bissonette was cited with approval in People v Carey, 382 Mich 285, 293, 294; 170 N.W. 2d 145 (1969).

Thus, in considering the question of whether a particular public officer is a peace officer, the Michigan Supreme Court in Carey and Bissonette concluded that, if a public officer has powers not specifically defined and limited by statute and if he has general responsibility for the enforcement of the law and preservation of the public peace, he is within the recognized and accepted usage of the term 'peace officer'.

It is, therefore, my opinion that the Attorney General is a peace officer. It is also my opinion that the Attorney General may appoint agents having this status to assist him to enforce his powers and carry out his duties. RS 1846, c 12, Sec. 35; MCLA 14.35; MSA 3.188. For example, the Attorney General may employ investigators and delegate to them full law enforcement powers necessary to enforce the general criminal laws of the state. It will be noted, however, that only individual assistant attorneys general and investigative personnel specifically designated by the Attorney General as authorized to exercise peace officer powers may do so. In addition, as these persons are 'at all times subject to the orders and directions of the Attorney General,' RS 1846, c 12, Sec. 35, supra, the Attorney General may divest them of this authority at any time.

Further support for this conclusion appears in People v Freed, 68 Mich App 272; 242 NW2d 551 (1976). In Freed, the defendant was convicted of carrying a concealed weapon without a license and claimed that his arrest had been illegal. In denying this contention of the defendant, the Court of Appeals stated:

'Defendant contends that his arrest by the Michigan State Police was unauthorized and unlawful, relying on MCLA 28.6; MSA 4.436. The statute provides in pertinent part:

"Any such member of the said department may serve and execute all criminal and civil process, when directed to do so by the governor or the attorney general, in actions and matters in which the state is a party. The commissioner and said department shall be under the immediate control and direction of the governor, and any member thereof may be employed by the attorney general in any investigation or matter under the jurisdiction of his department.'

'Defendant contends that his arrest was in contravention of this statute, in that the arrest was not personally authorized by the Governor or the Attorney General. We disagree. We note that MCLA 14.35; MSA 3.188 provides that an assistant attorney general may:

"appear for the state in any suit or action before any court or administrative body with the same powers and duties and in like cases as the attorney general, but shall at all times be subject to the orders and directions of the attorney general.'

'We do not believe that the Legislature intended that the Attorney General or the Governor personally authorize each and every arrest made by an officer of the Michigan State Police. Rather, we think the Legislature intended that the Governor and the Attorney General act through duly authorized subordinates.

'We are cited to no case which expressly construes the provisions of this statute, and we can find none. The Attorney General of the State of Michigan, however, has consistently opined that the Michigan State Police may serve civil process when directed by the Governor or the Attorney General in actions in which the state is a party. See 1 OAG, 1957, No 2883, p 160 (April 12, 1957) and other opinions cited therein. We agree with the Attorney General.

'In the case at bar, the arrest was authorized by an Assistant Attorney General and the State of Michigan was a party to the action. We hold that the officers of the Michigan State Police were authorized by MCLA 28.6; MSA 4.436 and MCLA 14.35; MSA 3.188 to arrest the defendant.' 68 Mich App at 273-275; 242 NW2d at 552

That this concept does not differ from generally recognized principles may be demonstrated by the fact that special agent investigators of the Attorney General's Organized Crime Division have been continuously recognized by numerous judges of our circuit and district courts as being 'peace offcers' with full law enforcement powers. These special agent investigators have been permitted by judges of our state to make arrests under the authority of an arrest warrant, to secure and execute search warrants authorizing the use of devices for the monitoring of conversations and to secure and execute search warrants authorizing the search and seizure of property. Recently, in People v Sacorafas (3), No. 29938, June 20, 1977, the Michigan Court of Appeals found no violation of the Michigan Eavesdropping Statute (MCLA 750.539 et seq; MSA 28.807(1) et seq) by special agent investigators of the Organized Crime Division who monitored and recorded conversations between the defendant and a third party who consented to the monitoring and recording. MCLA 750.539 et seq; MSA 28.807(1) et seq, prohibits the eavesdropping upon a private conversation without the consent of all parties, except by a peace officer or his agents while in the performance of his duties. This decision indicates that the Michigan Court of Appeals considers investigators of the Office of Attorney General to be 'peace officers'.

Frank J. Kelley

Attorney General

(1) Const 1963, art 5, Secs. 3, 21 and 23

(2) See, for example, MCLA 14.28 et seq; MSA 3.181 et seq, MCLA 445.807; MSA 19.853(7), MCLA 450.525; MSA 21.259, MCLA 24.259; MSA 3.560(159), MCLA 14.271 et seq; MSA 26.1200(21) et seq, MCLA 445.901 et seq; MSA 19.418(1) et seq, MCLA 450.1821; MSA 21.200(821).

(3) In Sacorafas, the Court ruled that tapes offered in evidence by the prosecution were admissible even though made without the defendant's knowledge. Although the opinion does not refer to this fact, some of the tapes offered were obtained by investigators of the Organized Crime Division of the Attorney General's Office. Leave to Appeal to Supreme Court sought by defendant on June 30, 1977.