What are the warrant rules when police or private citizens forcibly enter a residence?

Michigan statute MCL 764.21 states that a private person or police officer may forcibly enter a residence where a person who committed a felony is located or is reasonably believed to be located if a felony is committed in their presence. A police officer may also enter a residence if he or she has an arrest warrant. The arresting person must announce their purpose, and they must have been refused admittance to the home. However, this statute has been restricted by courts, including the U.S. Supreme Court.

In the case of Payton v. New York, 100 S.Ct. 1371 (1980), the United States Supreme Court stated: “The Fourth Amendment…prohibits the police from making a warrantless and nonconsensual entry into a suspect’s home in order to make a routine felony arrest.” This is the rule even if a state such as Michigan has a law that says entry is otherwise permissible. Of course, private citizens do not obtain arrest warrants, so they are likewise prohibited. Police are required to get an arrest warrant authorized by a judge if there are no “exigent circumstances.” Exigent circumstances mean emergency circumstances; for example, where the public is imminently endangered or if the police are in “hot pursuit” of a suspect, such as where a person has led the police on a car chase and runs into their home to complete the escape from the police. Another common form of exigent circumstances is where the police have reason to believe evidence will be destroyed if they wait for a warrant.

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Entry and Arrest by a Private Citizen

The phrase “private citizen” can mean either a true private citizen (not a police officer), or it can mean a police officer who is acting outside of his or her jurisdiction. If an officer is out of his jurisdiction, he has no sworn authority in that location, and therefore he or she is considered a private citizen.

The case of Bright v. Ailshie, 465 Mich. 770 (2002), is an example of this rule. The Michigan Supreme Court ruled that a private citizen, here a bail bondsman, did not have the authority to make an arrest unless the arresting citizen knows the suspect actually committed a felony. Probable cause to believe they committed a felony is not enough. The fact that a warrant is outstanding is probable cause for police to make an arrest, but this does not give a private citizen authority to arrest, and it certainly does not permit entry into a residence for that purpose.

Does the same rule apply to misdemeanors?

The Michigan Court of Appeals has ruled that MCL 764.21 does not permit entry into a residence for a warrantless misdemeanor arrest. When the person is a misdemeanor suspect, the Payton rule applies: a warrant is necessary.

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Third-party residences and other locations

If a third party owns a residence and the police have probable cause to believe a suspect committed a crime, and know a suspect is inside, the police must obtain the consent of the owner to enter. An arrest warrant alone is not enough to forcibly enter.

This rule applies equally to motels and hotels. In the Payton U.S. Supreme Court case, the Court held that even if the police have probable cause to arrest, and know the suspect is in a particular house, apartment, or motel, they may not enter unless “exigent circumstances” exist or there is consent. Exigent circumstances are situations where evidence may be destroyed if police wait for a warrant or someone’s life or health is in jeopardy. And, a motel or hotel employee does not have the authority to allow police into a rented room. Even if the police have a warrant, they may not enter a third party’s residence without exigent circumstances or consent of the person legally in control of the place the suspect is.

The test courts use to decide if a warrant is needed is whether the suspect has a “reasonable expectation of privacy” in the home or residence. Therefore, if police have probable cause to arrest and the suspect is out in public, no warrant is needed.

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