3.6 PROCEDURE AFTER ARREST

• Jurisdiction: Virginia
• Library: Defending Criminal Cases in Virginia (Virginia CLE) (2025 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. ⁴⁶⁷ If, however, the judicial officer before whom the person is brought is a judge of a district court having authority to try the case when 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. ⁴⁶⁸

A law-enforcement officer may execute within his or her jurisdiction a warrant, capias, or summons issued anywhere in the Commonwealth. ⁴⁶⁹ If a person is arrested upon a warrant in a county or city other than the one in which the charge is to be tried, the officer making the arrest must (i) bring the person before a judicial officer authorized to grant bail in either the county or city where the accused is arrested or where the charge is to be tried, or (ii) commit the accused to the custody of an officer from the jurisdiction in which the charge is to be tried, who must then bring the accused before a judicial officer in that locality. 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. ⁴⁷⁰

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, ⁴⁷¹ unless the person is released on summons as provided by law. ⁴⁷² The issuing authority before whom the person is brought examines the officer making the arrest and, if the issuing authority finds probable cause 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. ⁴⁷³ If a warrant or summons is not issued, the arrested person must be released.

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. ⁴⁷⁴

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. ⁴⁷⁵ 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. ⁴⁷⁶ 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. ⁴⁷⁷

Unreasonable delays in bringing the accused before a magistrate, even within 48 hours of arrest, include delays for the purpose of gathering additional evidence, delays motivated by ill-will, and delays for delay's sake. ⁴⁷⁸ Unreasonable delay in presenting an arrestee before a magistrate may also constitute false imprisonment. ⁴⁷⁹ A two-hour delay in bringing the accused before a magistrate for a probable cause hearing was held not to be unreasonable. ⁴⁸⁰ The application of these cases, however, is limited. First, they do not apply when the arrest is made under the authority of an arrest warrant or indictment. Second, they deal only with the lawfulness of "custody," and failure to comply with the mandate will not invalidate a conviction. Apparently, the "remedy" for a violation of this mandate would be release from custody secured through habeas corpus. ⁴⁸¹

The "fruit-of-the-poisonous-tree" issue, which arises when a confession has been obtained during the period when the police delayed bringing the person before a magistrate, has been the subject of dispute. At one time, the United States Supreme Court, acting under authority of its supervisory power over the federal courts, held that a confession obtained during the period of prolonged (illegal) detention was inadmissible. ⁴⁸² The so-called McNabb-Mallory rule has since been abandoned in the federal courts and was never specifically held applicable to state criminal prosecutions. Nonetheless, several states formerly embraced the rule. ⁴⁸³ In Virginia, however, courts have held that a confession obtained during the period of delay in bringing the accused before a magistrate in violation of the Virginia Code, whether the arrest is with or without a warrant, will not be suppressed as long as the arrest and detention are constitutionally valid. ⁴⁸⁴

3.604 Extradition.

⁴⁸⁵ Virginia has adopted the Uniform Criminal Extradition Act (the Act). ⁴⁸⁶ Specific provisions of...