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The following opinion is presented on-line for informational use only and does not replace the official version. (Mich Dept of Attorney General Web Site - www.ag.state.mi.us) STATE OF MICHIGAN FRANK J. KELLEY, ATTORNEY GENERAL Opinion No. 6515 April 27, 1988 PAROLE AND PROBATION: Authority of probation officer to use warrantless detainer for retention of person for alleged violation of a probation order Probation is not a right and may be revoked or terminated at informal hearings which are not subject to the rules of evidence. A district court probation officer has no authority to use a warrantless detainer causing an individual arrested on an unrelated charge to be held in custody for an alleged violation of a district court probation order. Honorable William Van Regenmorter State Representative The Capitol Lansing, MI 48909 You have requested my opinion as to the authority of a district court probation officer, when an individual has been arrested on an unrelated charge, to issue a warrantless detainer causing the individual to be retained in custody for an alleged violation of a district court probation order. District court judges are specifically authorized to establish a probation department within their district control unit. MCL 600.8314; MSA 27A.8314. Following either misdemeanor or felony convictions except murder, treason, criminal sexual conduct in the first or third degree, armed robbery and certain major controlled substance offenses, circuit or district court judges may place a defendant on probation under the charge and supervision of a probation officer. MCL 771.1(1); MSA 28.1131(1). Convictions for misdemeanor offenses, but not penal code misdemeanors punishable by two years of imprisonment, may receive up to a two year period of probation. MCL 771.2(1); MSA 28.1132(1), People v Smith, 423 Mich 427, 434; 378 NW2d 384 (1985). Probation is a matter of grace, not of right, and rests within the discretion of the court. People v Marks, 340 Mich 495; 65 NW2d 698 (1954). The sentencing judge has broad statutory authority in granting probation and in altering or amending a probation order. People v Sattler, 20 Mich App 665, 669; 174 NW2d 605 (1969). Because probation is a period of grace, aids rehabilitation, and is imposed in lieu of incarceration, the court is given 'an exceptional degree of flexibility in the administration of probation.' People v Kendall, 142 Mich App 576, 579; 370 NW2d 631, lv den 423 Mich 862 (1985); People v Marks, supra. In accordance with due process requirements, the Legislature has provided in MCL 771.4; MSA 28.1134, for the revocation or termination of probation orders at informal hearings which are not subject to the rules of evidence: 'It is the intent of the legislature that the granting of probation to one convicted shall be a matter of grace conferring no vested right to its continuance, if, during the period of probation it shall appear to the satisfaction of the sentencing court that the probationer is likely again to engage in an offensive or criminal course of conduct, or that the public good requires revocation or termination of probation previously granted. All probation orders, therefore, shall be revocable or terminable in any manner which the court which imposed probation shall deem applicable, either for any violation, or attempted violation of any condition of probation, or for any other type of antisocial conduct or action on the part of the probationer which shall satisfy such court that revocation is proper in the public interest. Hearings on such revocation shall be summary and informal and not subject to the rules of evidence or of pleadings applicable in criminal trials. The court may, in its probation order or by general rule, provide for the apprehension, detention and confinement of any probationer accused of violation of any of the conditions of probation or of conduct inconsistent with the public good. The method of hearing and presentation of charges accorded shall lie entirely within the discretion of the court which granted probation: Provided however, That the probationer shall be entitled to a written copy of the charges against him which constitute the claim that he violated his probation, and shall be entitled to a hearing thereon. Said court is hereby empowered to make such investigation and such disposition of probationer thereafter as such court may determine shall best serve the interests of the public. In case such probation order is terminated or revoked the court may proceed to sentence such probationer in the same manner and to the same penalty as it might have done if such probation order had never been made.' The Legislature has also vested discretion in the court as to the detention of a probationer prior to the probation violation hearing. MCL 771.4; MSA 28.1134, provides in pertinent part: 'The court may, in its probation order or by general rule, provide for the apprehension, detention and confinement of any probationer accused of violation of any of the conditions of probation or of conduct inconsistent with the public good. The method of hearing and presentation of charges accorded shall lie entirely within the discretion of the court which granted probation: Provided however, That the probationer shall be entitled to a written copy of the charges against him which constitute the claim that he violated his probation, and shall be entitled to a hearing thereon.' (Emphasis added.) Thus, MCL 771.4; MSA 28.1134, establishes two means by which the court may obtain the apprehension, detention and confinement of any probationer accused of violating the conditions of probation. These are: (1) through the court's original probation order, or (2) by court rule. Your question is whether a warrantless detainer may be used as an additional means to assure the continued custody when the individual is already in custody by virtue of an arrest on an unrelated charge. It is an accepted rule of statutory construction that the Legislature must have intended that which by its language is plainly stated. Dussia v Monroe County Employees Retirement System, 386 Mich 244, 249; 191 NW2d 307 (1971). However, in matters of practice and procedure, rules established by the Michigan Supreme Court take precedence. People v Langhan, 101 Mich App 391, 398; 300 NW2d 572 (1980), lv den 410 Mich 892 (1981). As promulgated by the Michigan Supreme Court, MCR 6.111(A) governs the mode of detention concerning probation revocation proceedings in district court when the maximum possible sentence that could be imposed is six months or more. See MCR 6.205. MCR 6.111(A), provides: '(1) If reasonable cause exists to believe that a person has violated a condition of probation, the court may: (a) if the alleged violation is other than a criminal offense and the court determines that arrest is unwarranted, direct that a summons (or its equivalent) to appear for arraignment on the probation violation charge be served on the probationer; or (b) issue a warrant for the arrest of the probationer.' The language of MCR 6.111(A)(1) is unequivocal. The rule authorizes issuance of a warrant only, and makes no provision for arrest or detention by means of a warrantless detainer. For noncriminal offense violations--e.g., use of alcohol, failure to report--the rule also authorizes the court to issue a summons or its equivalent in lieu of an arrest warrant. Although your opinion request presumes that circuit court probation officers have methods of detaining a probation violator not accorded to district court probation officers, it is to be noted that MCR 6.111(A) plainly applies to circuit court probation violation proceedings as well as those in district court, being part of subchapter 6.100 entitled: 'Rules applicable in circuit and recorder's court.' Consequently, circuit court probation officers have no special detantion powers. It is true that MCL 791.239; MSA 28.2309, authorizes a probation officer to arrest and detain an individual without a warrant. However, the language of the statute specifically restricts the use of detainers to parolees: 'A probation officer, a parole officer, or peace officer of this state may arrest without a warrant and detain in any jail of this state a paroled prisoner, if the probation officer, parole officer, or peace officer has reasonable grounds to believe that the prisoner has violated parole or a warrant has been issued for his or her return under section 38.' There is no indication in the statute that the Legislature intended to include probationers within the scope of MCL 791.239; MSA 28.2309. It is my opinion, therefore, that a district court probation officer has no authority to use a warrantless detainer causing an individual to be retained in custody for an alleged violation of a district court probation order. Frank J. Kelley Attorney General
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