9.3 The Law of Arrest

• Library: Virginia Law and Practice: A Handbook for Attorneys (Virginia CLE) (2020 Ed.)

9.3 THE LAW OF ARREST

9.301 General Considerations. A criminal case usually begins with the arrest of a suspect, either with or without a warrant, followed by an appearance before a magistrate, who commits the suspect to jail, admits him or her to bail, or discharges him or her from custody.

The law of arrest involves both constitutional and statutory constraints. The "arrest" of a suspect is a "seizure" of the person and implicates the full panoply of Fourth Amendment protections, including the "probable cause" and "warrant" concepts. ¹⁰² Moreover, the Fourth Amendment also governs seizures of the person that do not fit neatly into the commonly accepted definition of an arrest. Any forcible detention of a person by the government may amount to a seizure even though it might not be a formal arrest as that term is commonly understood. Thus, the constitutional protections surrounding the seizure of the person apply not only to arrests but also to other lesser forms of detention.

The statutory mechanism dealing with arrests is also complicated. For example, one must consider: (i) the procedure governing arrests under a warrant; (ii) when warrants are required as a matter of state law; (iii) and when arrests may be made without a warrant. ¹⁰³ Moreover, the Virginia Code authorizes, and at times mandates, the use of a summons rather than the traditional custodial arrest as the first step in the criminal process. ¹⁰⁴

Finally, while the process of taking the suspect into custody is a fundamental concern of the criminal justice system in its own right, as evidenced by the constitutional and statutory protections afforded, significant collateral evidentiary consequences also may be implicated. The lawfulness of an arrest may determine the admissibility of tangible and intangible evidence closely associated with it in a derivative evidence or "fruit-of-the-poisonous-tree"

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sense. ¹⁰⁵ For example, officers making an arrest often make a search incident to that arrest without a search warrant. ¹⁰⁶ The necessary predicate for the search is a lawful arrest. ¹⁰⁷ If the arrest was constitutionally unlawful, all evidence seized must be suppressed, including any statements made by the accused.

A. Stop and Frisk. When a police officer stops an individual based on a "reasonable suspicion based on articulable facts that crime is afoot," this does not constitute an outright arrest of the person. ¹⁰⁸ Reasonable suspicion is not probable cause, but probable cause can develop after the reasonable stop if during the "pat down" for weapons illicit contraband is found. In Terry v. Ohio, ¹⁰⁹ the Supreme Court recognized the flexibility of the Fourth Amendment allowing temporary detentions of individuals while honoring its protections. ¹¹⁰

B. Roadblocks. In Michigan Department of State Police v. Sitz, ¹¹¹ the Supreme Court upheld the validity of a sobriety checkpoint at which the police stopped and briefly detained all motorists approaching the checkpoint. The Court used a three-part analysis: (i) weighing the gravity of the public concern served by the seizure, (ii) the degree to which the seizure advanced the public interest, and (iii) the severity of the interference with individual freedom. In Simmons v. Commonwealth ¹¹² and Lowe v. Commonwealth, ¹¹³ the Supreme Court of Virginia emphasized that for roadblocks to meet constitutional standards, they must be set up with an

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explicit plan eliminating the exercise of official discretion. The constitutionality of a checkpoint intrusion hinges on an evaluation of the field officer's discretion and that the checkpoint does not involve standardless, unbridled discretion by the officers. ¹¹⁴

C. Drug Courier Profile. If there is a reasonable suspicion based on articulable facts that a suspect is transporting illicit drugs or contraband, the police can temporarily stop an individual to ask questions; however, the profile cannot involve any characteristics involving race, national origin, or ethnic qualities. ¹¹⁵

9.302 Full Custodial Arrest.

A. 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 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. ¹¹⁶ The officer need only speak the words of arrest and touch the person for the stated purpose of arrest to effect an arrest. ¹¹⁷ 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. ¹¹⁸

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B. 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. ¹¹⁹ 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. ¹²⁰ 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. ¹²¹

The question of what quantum and quality of information constitutes probable cause has plagued the courts for many years. Clearly, the use of hearsay in establishing probable cause to arrest creates the same problem as the use of hearsay to support probable cause to search. ¹²²

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. ¹²³ 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. ¹²⁴ The "absence of probable cause to believe that a suspect

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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." ¹²⁵ When an arrest is challenged on constitutional grounds, the Commonwealth has the burden of proving that the arrest was based on probable cause. ¹²⁶

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. ¹²⁷

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. An arrest may not be justified by what is disclosed by a search incident to the arrest. ¹²⁸

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. ¹²⁹

9.303 When Warrant Is Required.

A. 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

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place." ¹³⁰ In other words, the Court does not apply to a warrantless arrest the same Fourth Amendment analysis that it uses for a warrantless search; it does not condition the authority of officers to make warrantless felony arrests in public places upon the existence of exigent circumstances. 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 state law allows for a full custodial arrest, the Fourth Amendment is satisfied. ¹³¹

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, in order to enter a dwelling (which includes the curtilage of the home) in which the suspect lives to effectuate the arrest. ¹³² 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. ¹³³ The Court has yet to describe completely the nature of the "exigent circumstances" that would justify making a non-consensual entry into the suspect's dwelling without an arrest warrant. 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. ¹³⁴ The ban against warrantless entries into a home in order to make an arrest does not apply when the police are in hot pursuit. ¹³⁵...