3.5 ARREST WITHOUT WARRANT

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

3.5 ARREST WITHOUT WARRANT

3.501 General Statutory Authority.

Members of the state police force of the Commonwealth, the sheriffs of the various counties and cities and their deputies, the members of any county police force, the members of any duly constituted police force of any city or town, members of the Division of Capitol Police, other specified law enforcement personnel, and the special police officers of the counties, provided these officers are in uniform, may arrest, without a warrant, any person who commits any crime in their presence and any person whom they have reasonable grounds or probable cause to suspect of having committed a felony not in their presence. ⁴²⁹ The general rule that an officer may not arrest for a misdemeanor without a warrant except when the offense is committed in his or her presence means that the officer must have personal knowledge acquired by his or her personal senses that the offense was committed in his or her presence. ⁴³⁰

Officers do not need a warrant to arrest any person whom they have probable cause to suspect of operating a watercraft while intoxicated and may transfer custody of the suspect to another officer who may obtain a warrant based on statements made to him or her by the arresting officer. ⁴³¹ An officer may also apprehend a suspect without a warrant (i) at the scene of any accident involving a motor vehicle, watercraft, or motorboat, (ii) at any hospital or medical facility to which any person involved in the accident has been transported, or (iii) upon reasonable grounds to believe, based on personal investigation including information obtained from eyewitnesses, that a crime has been committed by any person present at the scene who is charged with the theft of any motor vehicle. ⁴³² Whether an arrest that occurs at the scene of an accident is legal is a case-by-case determination and depends upon whether the relevant factors are linked by time and place or by any reasonable temporal or lineal criteria. ⁴³³ Furthermore, an officer may, within three hours of an accident involving a motor vehicle, arrest at any location, without a warrant, any person whom the officer has probable cause to suspect of driving while intoxicated. ⁴³⁴

An officer may arrest, without a warrant, a person charged with a crime in another jurisdiction upon receipt of a photocopy of a warrant, telegram, computer printout, facsimile printout, or a radio, telephone, or teletype message that gives the name or a reasonably accurate description of the person wanted and the crime alleged. ⁴³⁵

An officer may also arrest, without a warrant, for an alleged misdemeanor not committed in the officer's presence when he or she receives a radio message from his or her department or other law enforcement agency within the Commonwealth that a warrant for the offense is on file. ⁴³⁶ An officer may also arrest without a warrant for an alleged misdemeanor not committed in his or her presence involving: (i) shoplifting in violation of section 18.2-96 or 18.2-103 of the Virginia Code or similar local ordinance; (ii) carrying a weapon on school property in violation of section 18.2-308.1; (iii) assault and battery; (iv) brandishing a firearm in violation of section 18.2-282; or (v) destruction of property in violation of section 18.2-137 when the property is located on premises used for business or commercial purposes, when the arrest is based on probable cause upon reasonable complaint of the person who observed the alleged offense. ⁴³⁷ The arresting officer may issue a summons to any person arrested for a misdemeanor violation involving shoplifting. ⁴³⁸

3.502 Authority of Correctional Officers.

A correctional officer may arrest without a warrant a person for crimes involving: (i) the escape of an inmate from a correctional institution; (ii) assisting an inmate to escape from a correctional institution; (iii) the delivery of contraband to an inmate; and (iv) any other criminal offense that may contribute to the disruption of the safety, welfare, or security of the population of a correctional institution. ⁴³⁹ A correctional officer may also detain, for the purpose of summoning a law enforcement officer to arrest, any person whom the officer reasonably suspects of committing any of the offenses described above. ⁴⁴⁰

3.503 Territorial Authority.

Under section 19.2-250 of the Virginia Code, the jurisdiction of law enforcement officers of towns and cities, and Chesterfield and Henrico counties, in criminal cases involving offenses against the Commonwealth extends one mile beyond the corporate limits of the town, city, or county, subject to certain population and geographical limits. This section, however, does not extend the reach of city ordinances beyond city limits. ⁴⁴¹ City police have the power to make arrests up to one mile beyond the city limits where they are employed as long as the arrest is for an offense against either the Commonwealth or the jurisdiction in which the arrest is made. ⁴⁴²

The relevant question for determining whether a police officer exceeded his or her territorial jurisdiction when making an arrest is not where the officer was located when the crime was observed but whether the alleged crime occurred within the jurisdiction of the county, city, or town for which the officer works. ⁴⁴³

An officer acts reasonably in an extraterritorial arrest if his or her actions are consistent with those circumstances under which a private citizen would be authorized to make an arrest. ⁴⁴⁴

3.504 Officer May Issue Summons in Certain Cases.

Whenever any person is detained by or is in the custody of an arresting officer for any violation committed in the officer's presence which offense is punishable as a Class 1 or Class 2 misdemeanor or any other misdemeanor for which a jail sentence is possible, the arresting officer must take the name and address of the person and issue a summons or otherwise notify him or her in writing to appear at a time and place specified in the summons or notice. ⁴⁴⁵ On the person's giving a written promise to appear, the officer must release him or her from custody. However, if the person fails or refuses to discontinue the unlawful act, or if the arresting officer believes that the person is likely to disregard a summons or to cause injury to self or others, the officer may proceed in accordance with normal procedure in issuing a warrant. ⁴⁴⁶

In Virginia v. Moore, ⁴⁴⁷ the United States Supreme Court held that if an officer, rather than issuing a summons, arrests a suspect in violation of section 19.2-74, the exclusionary rule does not apply as long as the officer had probable cause to arrest under the Fourth Amendment. The Court reiterated that when officers believe that a person has committed a crime in their presence, the Fourth Amendment permits them to make an arrest and search the person to ensure their own safety and to secure evidence; additional restrictions imposed by state statutes do not expand the Fourth Amendment's protections.

Whenever any person is detained by or in the custody of an arresting officer for violation of any county, city, or town ordinance or of any provision of the Virginia Code punishable as a Class 3 or Class 4 misdemeanor or any other misdemeanor not punishable by a jail sentence, except as otherwise provided in Title 46.2 or section 18.2-388 of the Virginia Code (public drunkenness), the arresting officer must take the name and address of the person and issue a summons or otherwise notify him or her in writing to appear at a time and place to be specified in the summons or notice. When the person gives a written promise to appear, the officer must release him or her from custody, except when the person fails or refuses to discontinue the unlawful act. ⁴⁴⁸

3.505 Officer Must Be in Uniform.

An officer making an arrest under the authority of any state or local law on any public road or highway must be dressed at the time in the uniform he or she customarily wears in the performance of his or her duties, which will clearly show the officer on casual observation to be a police officer, but the failure to comply with this mandate does not invalidate the arrest. ⁴⁴⁹

3.506 Pursuit and Arrest Incident to Escape or Flight from Custody.

When a person in the custody of an officer escapes or flees from the officer attempting to arrest him or her, the officer may pursue that person, with or without a warrant, anywhere in the Commonwealth and, when actually in close pursuit, may arrest him or her wherever found. ⁴⁵⁰ If the arrest is made without a warrant, the officer must procure a warrant from the magistrate who serves the locality where the arrest is made, charging the accused with the offense committed in the original county or city from which the offender fled and also with any other offenses committed during the close pursuit in the county...