3.2 THE ACT OF ARREST

• Jurisdiction: Virginia
• Library: Defending Criminal Cases in Virginia (Virginia CLE) (2025 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 or her 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. ³⁷⁰ The officer need only speak the words of arrest and touch the person for the stated purpose of arrest to effect an arrest. ³⁷¹ 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. ³⁷²

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. ³⁷³ 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. ³⁷⁴ 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. ³⁷⁵

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. ³⁷⁶ The determination of probable cause by police officers is not governed by the rules of evidence.

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. ³⁷⁷ 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. ³⁷⁸ The "absence of probable cause to believe a suspect committed 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." ³⁷⁹ When an arrest is challenged on constitutional grounds, the Commonwealth has the burden of proving by a preponderance of evidence that the arrest was based on probable cause. ³⁸⁰

Except for the facts that the officer knows, an officer's state of mind is irrelevant to the existence of probable cause. Thus, the offense for which probable cause exists need not be "closely related" to and based on the same conduct as the offense identified by the arresting officer at the time of the arrest. ³⁸¹

If an arrest is made without a warrant, probable cause to arrest must exist at the time the arrest is complete. The fact that contraband or other information was discovered afterwards is not enough, nor is it relevant to the determination of whether probable cause existed at the time of the arrest. An arrest may not be justified by what is disclosed after the fact by a search incident to the arrest. ³⁸²

The question of when an arrest warrant is required implicates both the Fourth Amendment and the Virginia Code. However, in evaluating the sufficiency of probable cause to arrest, the United States Supreme Court has expressed a strong preference for warrants and has stated that in a doubtful or marginal case on the probable cause question, an arrest under a warrant may be sustainable where one without it would fail. ³⁸³

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Notes:

^[370] White v. Commonwealth, 267 Va. 96, 106, 591 S.E.2d 662, 667 (2004) (reversing a conviction for escape from custody). At trial, the officer conceded that defendant was not under arrest at the time he conducted the pat-down search. The court held that the defendant was not in custody because the officer "had not yet restrained" the defendant "for the purpose of placing him under arrest . . . at that propitious moment that [the defendant] chose to flee rather than submit to [the officer's] authority." Id. at 105-06, 591 S.E.2d at 668; see also California v. Hodari D., 499 U.S. 621 (1991) (holding that a suspect is only in "custody" for Fourth Amendment purposes when (i) the officer applies physical force to the suspect or (ii) the officer makes a show of authority to which the suspect submits. A fleeing suspect who had not been physically restrained and did not submit to the officer's authority was therefore not in custody).

^[371] Hall v. Commonwealth, 280 Va. 566, 701 S.E.2d 68 (2010) (affirming a conviction of escape from custody by force or violence in violation of section 18.2-478 of the Virginia Code). The officer had gone to defendant's residence and advised him that he had a warrant for his arrest, advised him that he was under arrest, and grabbed his wrist to handcuff him. Notwithstanding defendant's subsequent...