3.3 WHEN WARRANT IS REQUIRED

• Jurisdiction: Virginia
• Library: Defending Criminal Cases in Virginia (Virginia CLE) (2025 Ed.)

3.3 WHEN WARRANT IS REQUIRED

3.301 Constitutional Requirements.

The United States Supreme Court has held that nothing in the Fourth Amendment prohibits the police from making warrantless felony arrests upon probable cause in a "public place" ³⁸⁴ even though an officer had adequate opportunity to procure a warrant after developing probable cause for arrest. ³⁸⁵ In other words, the Court does not condition the authority of officers to make warrantless felony arrests in public places upon the existence of exigent circumstances. ³⁸⁶ The Fourth Amendment likewise does not forbid warrantless arrests for misdemeanors if they are committed in the officer's presence, even where the offense is punishable only by a fine. If probable cause exists and the misdemeanor offense is committed in the officer's presence, the Fourth Amendment is satisfied. ³⁸⁷ Even if state law does not authorize a custodial arrest for the misdemeanor offense, a warrantless arrest does not necessarily violate the Fourth Amendment. ³⁸⁸

On the other hand, the Court has held that an arrest warrant (including a warrant for a misdemeanor arrest) is required, in the absence of exigent circumstances or consent, for an officer to legally enter a dwelling (which includes the curtilage of the home) in which the suspect lives to effectuate the arrest. ³⁸⁹ The Court has held that an arrest warrant carries with it the right to enter the suspect's dwelling without consent when there is reason to believe the suspect is within. ³⁹⁰ The Court has yet to describe completely the nature of the "exigent circumstances" that would justify making a nonconsensual entry into the suspect's dwelling without an arrest warrant. ³⁹¹ The Court has held, however, that the gravity of the offense is an important factor to be considered in deciding whether an exigency exists. While no exigency is created simply because the offense is a serious one, application of the exception will be rarely sanctioned when the offense is a minor one, such as fleeing the scene of an automobile accident. ³⁹² The ban against warrantless entries into a home in order to make an arrest does not apply when the police are in hot pursuit. ³⁹³ Furthermore, when police have an objectively reasonable belief that an occupant has been hurt or that injury is imminent, police may enter a residence under the "exigent circumstances" exception regardless of their subjective motives. ³⁹⁴ The police do not have an automatic right to make a warrantless entry while in pursuit of a fleeing misdemeanant. ³⁹⁵

Finally, the Court has held that when the police want to make a nonconsensual entry into a dwelling other than one in which the suspect lives in order to arrest, a search warrant must be obtained. ³⁹⁶ Thus, even if the police have an arrest warrant, absent consent or a search warrant, they may not enter a dwelling of a third party where the suspect does not reside in order to arrest the suspect.

3.302 Statutory Requirements.

Chapter 7 of Title 19.2 of the Virginia Code ³⁹⁷ sets out the general statutory requirements for arrest. Virginia statutory law reflects the common law rule that an officer may arrest any person without a warrant within his or her jurisdiction whom he or she has probable cause to believe has committed a felony. ³⁹⁸ In felony cases, it is irrelevant whether the crime was committed in the officer's presence or whether the information constituting probable cause came from firsthand observation or from other reliable sources. ³⁹⁹ Although section 19.2-76.1 provides that arrest warrants must be destroyed if not executed within seven years for felony warrants and three years for misdemeanor warrants, such warrants remain valid until the circuit court orders their destruction. ⁴⁰⁰

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Notes:

^[384] United States v. Watson, 423 U.S. 411 (1976).

^[385] Id. at 427 (Powell, J., concurring); Crowder v. Commonwealth, 213 Va. 151, 152-53, 191 S.E.2d 239, 240 (1972) ("It is well settled that a police officer may arrest, without a warrant, one whom he has reasonable grounds or probable cause to suspect of having committed a felony, even though the crime is not committed in his presence. It has also been held that an officer has probable...