3.6 Procedure after Arrest

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

3.6 PROCEDURE AFTER ARREST

3.601 Procedure After Arrest With Warrant. After making an arrest under a warrant or capias, the arresting officer must bring the arrested person without "unnecessary delay" before a magistrate in the county or city in which the warrant or capias was issued. The magistrate must admit the arrested person to bail or commit him or her to jail. ⁹⁴ If the magistrate before whom the person is brought is a judge of a district court having authority to try the case and the person is charged with a misdemeanor, and if the accused consents and the Commonwealth does not object, the judge may proceed to try the case at that time. ⁹⁵

If a person is arrested upon a warrant in a county or city other than that in which the charge is to be tried, the officer making the arrest must either (i) bring the person before a judicial officer authorized to grant bail in the county or city in which the accused is arrested or (ii) commit the accused to the custody of an officer from the jurisdiction in which the charge is to be tried. The judicial officer must immediately conduct a bail hearing and either admit the accused to bail or commit the accused to jail pending transfer to the county or city where the charge is to be tried. ⁹⁶

3.602 Procedure After Arrest Without Warrant. A person who has been arrested without a warrant must be brought "forthwith" before a magistrate or other officer authorized to issue criminal warrants in the county or city where the arrest is made, ⁹⁷ unless the person is released on summons as provided by law. ⁹⁸ The issuing authority before whom the person is brought examines the officer making the arrest and, if the issuing authority finds reasonable grounds to believe that a criminal offense has been committed and that the person arrested has committed the offense, he or she issues such a warrant or summons as might have been issued before the arrest. ⁹⁹ If a warrant or summons is not issued, the arrested person must be released.

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Procedural violations of section 19.2-82 require the exclusion or suppression of evidence only when constitutional rights are infringed; thus, the failure of the arresting officer to appear before the magistrate with the accused does not require suppression of evidence. ¹⁰⁰

3.603 Delay in Bringing Accused Before Magistrate. The Virginia Code and the Rules of the Supreme Court of Virginia require that the arresting officer, acting with or without a warrant, bring the accused "forthwith" or "without unnecessary delay" before a judicial officer authorized to issue criminal warrants and grant bail. The consequences of a failure to comply with this mandate are broader than the illegality of the arrest itself, particularly when a confession is extracted during the delay. The accused's objection is twofold: first, that the continued detention itself is illegal; and second, that since the detention is illegal, any evidence gained during the period of illegal detention (usually a confession) is inadmissible as a "fruit of the poisonous tree."

The Supreme Court has held that under the Fourth Amendment a person arrested is entitled to a neutral determination of probable cause to arrest. ¹⁰¹ Therefore, if the person is arrested without a warrant, the Fourth Amendment requires a judicial determination of probable cause to arrest as a prerequisite to extended restraint on liberty following arrest. The authority of an arresting officer acting without a warrant is limited to custody for a "brief" period of detention necessary to take the administrative steps incident to arrest. ¹⁰² A delay of up to 48 hours after arrest is presumptively reasonable, although a period of delay of less than 48 hours may be challenged in particular cases upon proof that the delay was for impermissible reasons. ¹⁰³

Unreasonable delays in bringing the accused before a magistrate, even within 48 hours of arrest, include delays for...