*1 Warrantless arrest for a misdemeanor of assault or assault and battery in a domestic relations matter committed outside of the officer's presence where there is no physical evidence of domestic abuse
Under MCL 764.15a; MSA 28.874(1), a peace officer, in a domestic relations matter, may make a warrantless arrest for a misdemeanor of assault or assault and battery committed outside of the officer's presence, in the absence of physical evidence of domestic abuse, when there is other corroborating evidence sufficient to constitute probable cause to believe that the person to be arrested committed the offense.
Colonel Michael D. Robinson
Michigan Department of State Police
714 South Harrison Road
East Lansing, MI 48823
You have asked whether, under MCL 764.15a; MSA 28.874(1), a peace officer, in a domestic relations matter, may make a warrantless arrest for a misdemeanor of assault or assault and battery committed outside of the officer's presence, if there is no physical evidence of domestic abuse.
In MCL 764.15a; MSA 28.874(1), as last amended by 1994 PA 66, the Legislature has addressed the question of arrests in the context of domestic assault and battery as follows:
A peace officer may arrest an individual for violating section 81 [making assault or assault and battery a misdemeanor where no other punishment is provided] or 81a of the Michigan penal code, Act No. 328 of the Public Acts of 1931, as amended, being sections 750.81 and 750.81a of the Michigan Compiled Laws, regardless of whether the peace officer has a warrant or whether the violation was committed in his or her presence, if the peace officer has reasonable cause to believe both of the following:
(a) That the violation occurred or is occurring.
(b) That the individual has had a child in common with the victim, resides or has resided in the same household as the victim, or is a spouse or former spouse of the victim.
OAG, 1985–1986, No 6296, p 79 (May 21, 1985), considered the predecessor version of the statutory section quoted above. Based upon then existing case law, that opinion concluded, at p 87:
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 Const1963, art 1, § 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. [Emphasis added.]
Recently, in Sheik–Abdi v McClellan, ___ F3d ___; 1994 USApp LEXIS 28483 (CA 7, 1994), a husband claimed that he had been unlawfully arrested for battery upon his wife who bore no markings of bodily harm at the time of the arrest. In rejecting that claim, the court ruled:
*2 In this case, there is no suggestion that Officers McClellan and Wazny were searching parts of the house in which they had no reason to be or in some other way were trying to gin up a charge against Sheik–Abdi. After entering the house, the paramedic on the scene notified the officers that he had observed Sheik–Abdi strike his wife in the chest. On the basis of this information, the officers made an arrest for battery. The next (and final) inquiry into whether this arrest comported with the Constitution requires us to ascertain whether the officers had probable cause.
The police have probable cause to arrest an individual when “the facts and circumstances within their knowledge and of which they [have] reasonably trustworthy information [are] sufficient to warrant a prudent [person] in believing that the [suspect] had committed or was committing an offense.” The rule of probable cause has been described as a “practical, nontechnical conception” that accommodates the often competing interests of effective law enforcement and the privacy and liberty of law-abiding citizens. The on-the-spot determination often requires an “exercise of judgment, which ‘turns on the assessment of probabilities in particular factual contexts—not readily, or even usefully, reduced to a neat set of legal rules.’ ” In recognition of the endless scenarios confronting police officers in their daily regimen, courts evaluate probable cause “not on the facts as an omniscient observer would perceive them but on the facts as they would have appeared to a reasonable person in the position of the arresting officer—seeing what he saw, hearing what he heard.” In practice, then, it can be said that “probable cause—the area between bare suspicion and virtual certainty—describes not a point but a zone,” within which reasonable mistakes will be excused.
We find that a prudent officer would have believed that probable cause existed to arrest Sheik–Abdi for the crime of battery. Under Illinois law, a battery is committed when a person intentionally or knowingly without legal justification and by any means (1) causes bodily harm to an individual or (2) makes physical contact of an insulting or provocative nature with an individual. While everyone agrees that Zeinab Sheik–Abdi bore no contemporary markings of bodily harm, we believe that, in the circumstances, Akers' statement [the paramedic] adequately formed the basis of a reasonable belief that an insulting or provocative contact had occurred. This court has consistently held that “when an officer has ‘received his information from some person—normally the putative victim or an eye witness—who it seems reasonable to believe is telling the truth,’ he has probable cause.” [ [ [Emphasis added, citations omitted.]
1994 USApp LEXIS at 18–23.
As demonstrated by the decision of the United States Court of Appeals for the Seventh Circuit in Sheik–Abdi v McClellan, supra, the “endless scenarios confronting police officers” make it impossible to reduce the concept of probable cause “to a neat set of legal rules.” Thus, it is now clear, in the context of warrantless arrests for domestic assault or battery, that probable cause may exist without any physical evidence of domestic abuse. To the extent that OAG, 1985–1986, No 6296, p 79, supra, concluded otherwise, it is superseded by this opinion.
*3 It is my opinion, therefore, that, under MCL 764.15a; MSA 28.874(1), a peace officer, in a domestic relations matter, may make a warrantless arrest for a misdemeanor of assault or assault and battery committed outside of the officer's presence, in the absence of physical evidence of domestic abuse, when there is other corroborating evidence sufficient to constitute probable cause to believe that the person to be arrested committed the offense.