3.2 The Act of Arrest

• Library: Defending Criminal Cases in Virginia (Virginia CLE) (2018 Ed.)

3.2 THE ACT OF ARREST

3.201 In General. An individual is in the custody of a law enforcement officer only where there has been a clear and effective restraint of the individual by the officer, either by having the individual in his physical control or by the individual's voluntary submission to the officer's authority, such that the individual's freedom of movement is curtailed to a degree associated with a formal arrest. ³ The officer need only speak the words of arrest and touch the person for the stated purpose of arrest to effect an arrest. ⁴ Advising an individual who is in the hospital and confined to a hospital bed and hooked to an IV that he or she is under arrest for driving under the influence constitutes an arrest for purposes of the implied consent statute, and the subsequent issuance of a summons is a release from arrest. ⁵

3.202 Constitutional Probable Cause Standard. The Fourth Amendment mandates that an arrest, with or without a warrant, may only be made upon probable cause to believe that the person to be arrested has committed a crime. ⁶ If the arrest is made under the authority of a warrant issued by a neutral and independent magistrate, it must be based on information constituting probable cause presented under oath or affirmation to the magistrate. ⁷

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If an arrest is made without a warrant, information constituting probable cause must be known to the arresting officer before the arrest, but the Virginia Court of Appeals has held that the "collective" knowledge of all officers participating in the arrest may be considered. ⁸

The question of what quantum and quality of information constitutes probable cause has plagued the courts for many years. Because the same constitutional standard governs the legality of searches, the cases dealing with the technicalities of probable cause are interchangeable for the most part and are fully developed in Chapter 5 of this book. Clearly, the use of hearsay in establishing probable cause to arrest creates the same problem as the use of hearsay to support probable cause to search. ⁹

Probable cause to arrest, whether in the context of the application for an arrest warrant or a warrantless arrest, concerns probabilities. It is to be evaluated on the basis of the factual and practical considerations of everyday life on which reasonable and prudent persons, not legal technicians, act. ¹⁰ Probable cause to arrest exists when "the facts and circumstances within [the magistrate's or arresting officers'] knowledge and of which they had reasonably trustworthy information [are] sufficient in themselves to warrant a man of reasonable caution in the belief that" an offense has been or is being committed. ¹¹ The "absence of probable cause to believe that a suspect committed

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the particular crime for which he was arrested does not necessarily invalidate the arrest if the officer possessed sufficient objective information to support an arrest on a different charge." ¹² When an arrest is challenged on constitutional grounds, the Commonwealth has the burden of proving that the arrest was based on probable cause. ¹³

Except for the facts that the officer knows, an officer's state of mind is...