Detroit Police Dept. Witness Detention Findings Letter
June 5, 2002
Ms. Ruth Carter
City of Detroit
660 Woodward Avenue, Suite 1650
Detroit, MI 48226-3491
Re: Investigation of the Detroit Police Department
Dear Ms. Carter:
As you know, the Civil Rights Division and the United States
Attorney's Office for the Eastern District of Michigan are
jointly conducting an investigation of the Detroit Police
Department (DPD), pursuant to the Violent Crime Control and Law
Enforcement Act of 1994, 42 U.S.C. § 14141. We greatly
appreciate the cooperation of the City of Detroit and the DPD
thus far in this investigation.
Our investigation covers three areas: Use of force policies
and practices of the DPD; DPD holding cell conditions, policies
and practices; and DPD arrest and detention policies and
practices. We identified our preliminary concerns regarding the
use of force policies and practices of the DPD in our letter of
March 6, 2002. We identified our concerns regarding DPD holding
cells in a letter regarding emergent conditions on April 25,
2001, and provided more extensive comments and technical
assistance recommendations regarding DPD holding cell conditions,
policies and practices in our April 4, 2002 letter.
In this letter, we identify several areas of concern
regarding DPD arrest and detention policies and practices, along
with our recommendations for addressing these concerns.
Important aspects of our fact-gathering process have yet to be
completed, most notably completing our review of relevant DPD
documents. Therefore, this letter is not meant to be exhaustive,
but rather focuses on significant concerns identified in our
review of the DPD's policies and procedures, a preliminary review
of the documents that the DPD has produced and interviews with
over 100 DPD employees. Please note that we may identify
additional issues, and that the concerns discussed below do not
relate to the use of force and holding cell components of our
In March of 2000, former United States Attorney Saul Green
met with former DPD Chief Benny Napoleon, other DPD command-level
staff and supervisors from federal law enforcement agencies to
discuss DPD arrest policies and procedures. The meeting was
called because the United States Attorney's office had received
reports of unconstitutional arrest and detention practices within
the DPD homicide section. In response, the DPD agreed to end
these arrest and detention practices and to institute a training
program to ensure future compliance with constitutional mandates.
Our review to date raises concerns that the DPD may be
(1) making warrantless arrests without probable cause; (2)
arresting and detaining witnesses and family members of suspects
without proper judicial authority; and (3) inappropriately
delaying probable cause hearings before a judge or magistrate.
Our interviews of DPD personnel indicate that, with the exception
of Wayne County Prosecutors having spoken at a homicide roll
call, the DPD has not instituted any policy changes or formal
training program to address these concerns. We recognize that
the new leadership in the DPD intends to address these issues.
As our investigation initially focused on the homicide
section, the numbers presented in this letter reflect arrests and
detentions in that section. Although arrest and detention
concerns were identified throughout the DPD, the homicide section
is one of the special commands where the arrest and witness
detention concerns were most prevalent. The special commands
include homicide as well as the other sections of the major
crimes division and the narcotics bureau. The special commands
are located in the First Precinct in the Headquarters Building.
Individuals detained by the special commands were lodged, or
housed, in the First Precinct until the cells were closed in
September 2001. Special command detainees are now lodged in any
precinct with available space. The closure of the cells in the
First Precinct does not change our analysis as 1) the individual
investigator in charge of a particular case and that
investigator's supervisor continue to be responsible for the
detainee irrespective of location, and 2) the DPD has not changed
its problematic arrest and detention policies and practices.
II. Arrest Policies and Practices
DPD arrest policies and procedures contain imprecise,
ambiguous and contradictory language. The policies as
written, coupled with a lack of supervision, allow for the
unconstitutional arrest of witnesses and suspects.
A. Arrest of witnesses
We recommend that the DPD amend and clarify its policies to
comply with the law governing arrest. An arrest occurs when an
officer's words or actions would convey to a reasonable person
that he or she is not free to leave. (1) California v. Hodari D.,
499 U.S. 621, 628 (1991). Therefore, an officer's subjective
intent is not a factor in the evaluation. This inquiry is based
on all of the circumstances surrounding the encounter. Florida
v. Bostick, 501 U.S. 429, 437 (1991). Thus, an individual may be
under arrest whether uncuffed on the street, guarded by officers
in a special command or locked in a precinct holding cell, so
long as a reasonable person would conclude that he or she is not
free to leave.
According to DPD policy an arrest is defined "as a taking of
an individual into custody for further investigation, booking or
prosecution." (2) Under DPD policy, "an arrest is not valid unless
the arresting officer actually has the intent to make an arrest
according to the definition of 'arrest'." (3) DPD policy further
states that witnesses should be detained at the scene of a crime
investigation and/or transported to the Headquarters Building for
interviewing. (4) These policies implicitly authorize DPD employees
to detain witnesses involuntarily for questioning. Some DPD
employees, who acknowledge that witnesses are detained
involuntarily for questioning, stated that even though a witness
is not free to refuse transport to or leave from the command,
they do not consider the witness to be under arrest.
We recommend that the DPD revise and clarify its
investigative policies and eliminate any authorization or
instruction to detain witnesses, absent a valid material witness
order. (5) We further recommend that the DPD utilize appropriate
law enforcement procedures that include techniques for both on-scene and station house interviews of witnesses. The procedures
must safeguard voluntary participation by witnesses.
The new policies and procedures should be circulated to all
precincts and commands. The DPD Manual should be updated to
reflect the changes. The DPD should provide training on the new
policies and procedures to all levels of command. All training
should be documented to clearly identify who was trained, the
date they were trained, and how the training was conducted.
Finally, audits should be conducted to ensure compliance with the
B. Arrest of suspects
The DPD does not adequately define arrest or probable cause,
although DPD policy correctly states that probable cause is
required for an arrest. (6) As previously mentioned, the DPD
defines an arrest as "a taking of an individual into custody for
further investigation, booking, or prosecution." (7) This policy
implicitly permits the arrest of an individual with less than
probable cause as a means to facilitate an investigation.
Indeed, some former DPD employees informed us that it was
acceptable practice to arrest suspects without probable cause and
then continue to investigate the case to develop probable cause
prior to arraignment. Gathering additional evidence after an
arrest in order to establish probable cause for that arrest is
unconstitutional. County of Riverside v. McLaughlin, 500 U.S.
44, 56 (1991).
Furthermore, DPD policy states that "a very substantial
possibility that the person to be arrested has committed a crime"
is sufficient for probable cause. (8) This is problematic because
it does not set an objective standard. Probable cause requires
the officer have information "sufficient to warrant a prudent
person, or one of reasonable caution, in believing, in the
circumstances shown, that the suspect has committed, is
committing, or is about to commit an offense." Michigan v.
DeFillippo, 443 U.S. 31, (1979) (citations omitted). DPD policy
also implicitly sets a lower standard by referring to the
possibility that a crime was committed, rather than a
Within any given police department there will be examples of
individuals who are arrested and then discharged from police
custody without being charged with a crime. However, the large
number of individuals arrested and later discharged by the DPD
indicates that arrests may have been made without probable cause.
The 1998 FBI Uniform Crime Report revealed that in 1998 the DPD
arrested three times as many individuals for homicides as the
number of homicides in the City of Detroit. In that same year,
the DPD solved only 47% of it's homicide cases. This trend
continued in 1999 and 2000. (9)
While more than one person may be involved in a homicide,
which could increase the number of arrests per homicide, our
preliminary document review indicates that this does not explain
this discrepancy. For example, in one month in 2001, 76
individuals were arrested and initially charged with homicide. (10)
Of the 76, only 30% were formally charged with homicide. Of the
53 individuals not formally charged with homicide, 23% were held
for over 48 hours, one for 91 hours, or almost four days.
DPD employees informed us that a suspect may be discharged
from police custody if probable cause is not attained within a
reasonable period of time after the arrest. (11) If and when
probable cause is attained, the suspect may be re-arrested. As
discussed above, arresting individuals without probable cause
and then investigating to obtain probable cause is not
constitutional. Other DPD employees revealed that some suspects
are not actually released from the precinct for lack of probable
cause, but instead are removed from the holding cell and taken
into another area of the precinct while the investigator
completes new arrest documentation indicating a new arrest date
and time and returns the individual to the holding cell, with no
apparent additional basis for an arrest.
Two DPD policies that require supervisory review of probable
cause are not being applied to the special commands in the
Headquarters Building. The first requires the Officer-in-Charge
(OIC) of the precinct station desk to review the circumstances of
each arrest. (12) The second requires each precinct commanding
officer to review the details of the case for every individual
lodged and later discharged. (13)Although DPD employees informed
us that the supervisors in the special commands were expected to
know who was arrested, on what case, and for what reason, this
review process was not routinized or documented in the special
We recommend that the DPD amend and clarify its definition
of probable cause. The DPD should revise and clarify its arrest
policies to eliminate any reference to an arrest as an
We recommend that the DPD ensure that the policies requiring
supervisory review of probable cause are applied to the special
commands. The consistent application of existing DPD policies
will require a supervisory and precinct review of probable cause
when a detainee is lodged by an investigator in a special
command. Furthermore, the case file should clearly indicate
every individual arrested in the course of an investigation by
name, address, probable cause statement, date of arrest, date of
discharge, arresting officer and supervisor approving the
The new policies and procedures should be circulated to all
precincts and commands. The DPD should provide training on the
new policies and procedures to all levels of command. All
training should be documented to clearly identify who was
trained, the date they were trained, and how the training was
conducted. Finally, audits should be conducted to ensure
compliance with the new procedures.
III. Detention Policies and Practices
When a detainee is arrested, the DPD requires that the
detainee be formally processed before being placed in a precinct
holding cell. As part of the processing procedure, DPD policy
requires that an arrest ticket be completed. An arrest ticket
records an individual's personal information as well as the
charge on which he/she is lodged, or detained in a holding cell.
If the individual is a police witness, the investigator is
required to identify that information on the arrest ticket and to
attach the court order authorizing the witness' detention to the
The DPD does not ensure that detainees are moved out of its
custody in a systematic and timely manner. The lack of a
systematic process permits the unconstitutional detention of
individuals in DPD custody. The DPD precinct cells were designed
and are intended to operate as temporary holding facilities.
Regardless of a detainee's destination, (14) the DPD needs to
implement a system that will process all detainees and ensure
their timely movement out of DPD custody.
A. Individuals lodged as police witnesses
A witness who is subpoenaed to testify in a criminal case is
a material witness. Pursuant to the U.S. Constitution and
Michigan Law, only a court has the authority to decide whether an
individual is a material witness and whether that material
witness should be committed to a jail pending his/her
DPD policies regarding material witnesses are inconsistent.
Although the DPD does not identify material witnesses as such,
the DPD describes four categories of police witnesses, all of
whom are detained to ensure their testimony in a criminal case (16)
and all of whom require a court order prior to their detention in
a precinct cell. (17) This policy also states that the DPD does not
have the authority to detain a police witness without a court
order for more than 12 hours. (18) The policy implies that an
eleven hour detention without a court order is acceptable. Yet
another DPD policy specifically requires DPD detention officers
to check the admission cards of all police witnesses on a daily
basis and to contact the OIC regarding the lack of a court order
or expected date of release. (19) These inconsistencies in DPD
policies implicitly allow for the illegal detention of
individuals classified as police witnesses.
DPD employees have informed us that individuals merely
suspected of being a witness or merely suspected of knowing the
whereabouts of a suspect are arrested, lodged and held as police
witnesses in precinct cells without a court order or access to
judicial review. However, even if the DPD enforced its policy
requiring a court order to arrest or detain police witnesses,
individuals would remain improperly detained in DPD custody
because not all witnesses are classified as witnesses when they
are arrested. Indeed, DPD employees informed us that some
witnesses are listed as being charged with the crime with which
they are believed to have information.
Some witnesses are appropriately classified as police
witnesses and lodged pursuant to a court order. We spoke to
several such police witnesses who were sentenced prisoners
removed from a state correctional facility. The police witnesses
we spoke to had been in the holding cells for several months even
though DPD facilities are designed and operated for temporary
We recommend that the DPD revise its policies regarding
police witnesses to eliminate conflicting elements and to comply
with the U.S. Constitution and Michigan Law. The DPD should not
allow any individual classified as a police witness to be lodged
without a court order. If an investigator does not have a court
order, the OIC of the precinct desk should refuse to lodge the
witness. Similarly, if a witness without a court order is
detained at a special command, the investigator's supervisor
should ensure that the individual is immediately released.
The DPD should arrange for any police witness held for an
extended period of time to be lodged in a facility designed for
B. Individuals charged with a crime
Judicial review of a warrantless arrest is required as soon
as is reasonably feasible. (20) DPD policy requires DPD employees
to obtain judicial review of a warrantless arrest "within the
time period required by law" or "within a reasonable period of
time." (21) Despite this written policy, several DPD employees
informed us that they have 48 hours from the time of arrest to
seek judicial review as a matter of course. Some DPD employees
stated that they used the 48 hour period to investigate for
probable cause and/or to seek a statement from the detainee.
Some DPD employees stated that they were allowed 72 hours if an
individual was charged with a felony. During our February 2002
tour, we were informed by a DPD employee that a woman recently
had been detained at the 12thprecinct for five days before
presentment for judicial review.
DPD employees have informed us that after an arrest, the
arresting officer completes the necessary paper work including a
warrant request. The submission of a warrant request to the
precinct's court liaison begins the arraignment process. Each
day, the court liaison files the requests with the prosecutor's
office, who in turn schedules the detainee for arraignment. In a
case involving a special command, the arresting officer does not
submit the warrant request because the case is turned over to an
investigator in a special command. The assigned investigator
determines when to submit the warrant request and may delay this
process to interview the detainee or conduct other additional
investigation. DPD employees cite investigator unavailability as
the primary cause for delay in the arraignment process.
DPD Special Order 95-47 attempts to create a system to
ensure a timely arraignment by requiring notification and
responsibility at multiple levels of command. The Special Order
states that it is the responsibility of the investigator in
charge of the case or the investigator's supervisor to ensure
that a detainee is arraigned within the "time period required by
law." If a detainee is not arraigned within 24 hours, the policy
requires that "the command holding the detainee" notify the
deputy chief or an executive duty officer. Upon executive
review, if permission to hold the detainee beyond 24 hours is
granted, the arrest ticket is to be marked accordingly and an
inter-office memo is to be sent to the affected deputy chief.
The Special Order requires deputy chiefs to prepare a monthly
report to the chief "detailing the circumstance of detainees held
over 24 hours." Our preliminary document review reveals no
notations indicating executive review of arrest tickets of
individuals detained over 24 hours. Interviews with DPD
employees confirm that the policy is not practiced.
Prior to the closing of the holding cells in the First
Precinct, DPD detention officers at that facility were required
to record all detainees held for 36 hours or more. (22) However,
the policy only authorized the OIC to contact the investigator in
charge of the case or the investigator's supervisor, notify him
or her that the detainee had been in custody for 36 hours or more
and record the notification. The OIC was not authorized to send
the detainee to court or release the detainee if an investigator
was in charge of the case, although the OIC did have this
authority if a non-investigator was the officer in charge of the
case. The policy also required a written authorization for
prisoners held over 48 hours by the commanding officer of the
unit responsible for the prisoner. Our preliminary document
review reveals no notations indicating executive review of
individuals detained over 48 hours. Interviews with DPD
employees further confirm that it is not uncommon for DPD
detainees to be held over 48 hours. Similarly, our preliminary
document review revealed that in one month in 2001, of the 83
individuals either detained on a charge of homicide or as a
police witness without a writ, 29% were detained for more than 48
We recommend that the DPD examine its policies and repeal or
amend policies that are fully or partially in conflict with the
U.S. Constitution and Michigan Law. The DPD should circulate the
revised policies, provide training to all affected levels of
command, and document the training of DPD employees as described
in Section 2(B) above. Audits should be conducted to ensure
compliance with the new procedures.
We recommend that the DPD develop a routine and systematic
process to ensure that a detainee will be presented for judicial
review as required by the U.S. Constitution and Michigan Law.
The process should be triggered when an individual is lodged in a
precinct and proceed independent of an investigator's oversight.
An investigator's unavailability should not affect the detainee's
arraignment process. (23)
If a detainee's arraignment does not occur as part of this
systematic process, DPD policy should designate the individual
responsible for contacting the investigator's supervisor
regarding this delay. Upon notification, the supervisor should
be required to submit a written review of the detention,
specifying the probable cause for the arrest, the reasons for the
delay in arraignment and the steps identified to ensure imminent
arraignment. If the supervisor's investigation reveals that the
detainee's arraignment was delayed without good cause, the
supervisor should authorize the detainee's release. This entire
process should be documented and contained in the case file.
An arrest ticket is prepared for every detainee lodged in a
precinct cell. The arrest ticket records an individual's
personal information as well as a criminal charge. There is a
separate arrest ticket for each charge. An arrest ticket marked
with a "hold" indicates that a detainee should not be released if
the charge on the particular arrest ticket is resolved, as the
detainee has additional pending charges.
Pursuant to DPD policy, (24) individuals detained by special
commands are not permitted to clear outstanding warrants or holds
until arraignment or discharge by the special command. Our
preliminary document review reveals that in one month in 2000,
several individuals with outstanding traffic warrants were held
by a special command for several days before being released by
the special command. The DPD should not prevent a detainee from
clearing a traffic warrant while using the existence of the
traffic warrant to justify an individual's continued detention.
We recommend that the DPD amend its warrant policy. All
detainees with warrants should be presented to the court where
the warrant was lodged in a routine and timely manner. The
interest or charge of a special command should not affect the
time frame in which the warrant is vacated. A legitimate
material witness order will serve to hold a detainee for a
special command after the traffic warrant is vacated.
The DPD does not have a policy that identifies appropriate
circumstances for restricting an individual's telephone or
visiting privileges. An investigator is able to deny telephone
and visitation privileges to a witness or a suspect in a precinct
holding cell without a documented explanation or review of the
decision. The investigator need only relay the name of the
individual and the type of restrictions to a detention officer
who recorded the restrictions in a log book. (25) Some DPD
employees informed us that a detainee with telephone restrictions
would not be permitted to telephone an attorney.
We recommend that the DPD develop policies that do not
unreasonably restrict a detainee's access to telephone calls
or visitors. Although the DPD may identify special circumstances
that require reasonable restrictions, the policy should:
1) identify the circumstances that permit a restriction; 2)
require a written record; and 3) be subject to review. Copies
should be kept at the precinct of detention and in the case file.
The policy also should clearly articulate that it does not
prevent a detainee from communication with an attorney.
E. Record Keeping
DPD arrest and detention record-keeping practices are
insufficient. Without accurate record-keeping, the DPD cannot
review the status of detainees held in DPD custody to determine
the basis or length of detention. Poor record-keeping also makes
oversight of the arrest and detention process difficult.
DPD policy requires that each detention be recorded on three
separate documents, the arrest ticket, the log book/desk blotter
and the computerized data base. (26) Prior to its closing, the
First Precinct was required to maintain a fourth record for each
detainee, a prisoner admission card.
In one month in 2001, we found that of the 94 persons
arrested and charged with a homicide (27) or as a police witness in
connection with a homicide: 26% had no arrest tickets; 35% had
no prisoner admission cards; 8% were never entered in the
database; and 48% did not appear in the log book. Arrest tickets
frequently did not have all of the required information
completed, such as the "Initial Charge" or "Final Charge" or the
date and time a particular detainee was discharged or turned over
to another agency. As a result, there is no log or data base
that accurately reflects each individual arrested by the DPD.
We recommend that the DPD develop a system which ensures the
complete and uniform documentation of each person held in DPD
custody. The system should allow the DPD to evaluate the
detainee population in terms of length of detention, timely
presentment to a judicial officer and ratio of arrests to
judicial findings of probable cause. We also recommend that the
DPD develop an audit process which regularly evaluates detainee
documentation for accuracy and completion.
Thank you again for the continued cooperation of the Law
Department and the DPD. We look forward to working with you and
Steven H. Rosenbaum
Special Litigation Section
Jeffrey G. Collins
United States Attorney
Eastern District of Michigan
cc: The Honorable Kwame M. Kilpatrick
Chief Jerry A. Oliver, Sr.
1. A brief investigatory stop based upon reasonably
articulable suspicion is not an arrest. Terry v. Ohio, 392 U.S.
1, 21 (1968).
2. Detroit Police Department General Procedures(GP), Volume
III, Chapter 9, Section 7.
3. GP, Volume III, Chapter 1, Section 8.2. DPD policy does
seem to recognize that there is an objective standard for an
arrest in a limited context. Specifically, DPD policy states
that a court may find that a Terry stop has become an arrest if
an individual has been detained for an undue length of time (the
policy recommends no more than 20 minutes) or if an individual is
transported to another location. GP Volume III, Chapter 1,
Section 4.7. However, this provision only addresses when a Terry
stop becomes an arrest, not the more generalized question of when
an arrest has occurred.
4. GP, Volume III, Chapter 9, Sections 1, 3.2, 5.1(f) and 8.
5. The detention of material witnesses will be discussed in
Section III(A) below.
6. GP, Volume III, Chapter 1, Section 16.1.
7. GP, Volume III, Chapter 1, Section 7.
8. GP, Volume III, Chapter 1, Section 16.2.
9. 1998 FBI Uniform Crime Report indicates that the DPD
reported 1,310 homicide arrests but only 430 homicide cases.
Similarly, the Michigan State Police Uniform Crime Report
indicates that in 1999, the DPD reported 1,152 homicide arrests
for 415 homicides and in 2000, the DPD reported 1,217 homicide
arrests for 396 homicides.
10. The initial charge is the charge for which the DPD
officer indicates the individual is being detained. A final, or
formal charge, is the charge sought by the DPD on a warrant
presented to a judicial officer.
11. One DPD employee claimed that the additional arrest
tickets caused by the temporary release and re-arrest of homicide
suspects explains the unusually high number of homicide arrests
reflected in the FBI Uniform Crime Report. This does not account
for the large discrepancy and raises concerns that arrests are
being made without probable cause, as discussed above.
12. GP, Volume III, Chapter 2, Section 1.
13. GP, Volume III, Chapter 2, Section 106.
14. Detainees may be arraigned, released, sent to a specific
court to have a warrant vacated or lodged at another facility.
15. MCL § 767.35.
16. "1. Hostile Witness: A hostile is a non-involved eye
witness to a crime but refuses to testify when subpoenaed.
2. Protective Custody Witness: This classification of
witness is a person who comes forth to testify but requests
protective police custody because of life-threatening
3. Co-defendant Witness: A co-defendant witness is a
person charged with a crime awaiting trial or sentence on one
case and declares himself a witness to another case.
4. Declared Witness: A declared witness is a person
charged with a crime awaiting trial or sentence on one case and
declares himself a witness to another case." Detroit Police
Department Standard Operating Procedure (SOP) S-100.
17. "A prisoner classified as a police witness will not be
detained in our custody unless said witness is committed by
authority of an Affidavit For Order Detaining Prisoner/Material
Witness document signed by a 36th District or Recorder's Court
judge." SOP S-100(I)(B)(4).
18. Id at (II)(E)(1).
19. SOP C-300.
20. County of Riverside v. McLaughlin, supra.
21. DPD Legal Advisor Update 01-01 issued March 22, 2001 and
DPD Legal Advisor Update 92-02 issued May 15, 1992. Although
the Legal Advisor Updates state that it is unreasonable to delay
judicial review for the purpose of gathering additional evidence
to justify the arrest, the DPD did not change its definition of
arrest or clarify its arrest policies. See discussion in Section
22. SOP C-301.
23. Delaying arraignment for investigative purposes violates
the Supreme Court's ruling in Riverside, supra.
24. GP, Volume III, Chapter 2, Section 19.4/19.5.
25. The log book was the practice in the now-closed First
Precinct cells; we are unclear as to the practice in the
26. The data base generates a unique central booking number
for each charge lodged against a detainee.
27. The number of individuals charged with homicide is the
sum of individuals charged with murder, homicide and