CUSTODIAL ARRESTS IN VIRGINIA

 

[DISCLAIMER – the reader of these comments should not rely upon them in making any legal judgments without consulting first with the local office of the Commonwealth’s Attorney]

 

[SECOND DISCLAIMER - I have asked a couple Assistant Commonwealth's Attorneys to review the comments below.  Revisit this site to see if I have made any changes to it.  I will place new comments here, indicating whether or not I have made changes, after I receive feedback from them].

 

            I apologize for taking so long in getting this statement together and placing it on the web.  I wanted to do a bit more reading before I finalized my thoughts about this topic.  I feel much more confident of what I am about to say than I did in what I was saying during our class on June 6.

 

            First, let’s refresh our memory about the issue we discussed that day.  The issue is whether Virginia Code §19.2-74 requires officers to issue citations with respect to virtually all misdemeanors.  (I have placed the entire text of that statutory provision at the end of these comments so that you can quickly refresh your memory about its contents, if you feel the need).  Another way of putting it is whether §19.2-74 prohibits custodial arrests for all misdemeanors.  (As used throughout this discussion, “custodial arrest” refers to taking the person charged with a crime to the police station for booking and subsequently to a magistrate for an initial appearance or preliminary arraignment).  Of course, this issue has become extremely important in Virginia (as well as all other states) because of the U.S. Supreme Court’s decision in Atwater v. City of Lago Vista (2001).  Recall that in Atwater, the Court held that the Fourth Amendment of the Constitution imposes no limits on the types of criminal offenses for which custodial arrests may be made.  In other words, states are free (under the Constitution) to permit custodial arrests for any and all offenses, regardless how minor the offense.

 

            As a result of the Court’s decision in Atwater, we now look to state law for limits (if any) on the ability of the police to make custodial arrests for minor offenses.  Since the Court also held in Whren v. U.S. (1996) that an arrest is constitutional even if the arresting officer makes the arrest for the purpose of conducting a search incident to the arrest (i.e., a pretext arrest), state restrictions on the authority of the police to make custodial arrests for minor offenses constitute the only limits on the ability of the police to make pretext arrests for minor offenses.

 

            What sparked our lively discussion in class was my comment that §19.2-74 prohibits custodial arrests for virtually all misdemeanors.  I was clearly wrong about that.  Section 19.2-74 consists of two basic provisions.  Section 19.2-74(A)(1) deals with Class 1 and Class 2 misdemeanors (let’s call these serious misdemeanors), while Section 19.2-74(A)(2) deals with Class 3 and Class 4 misdemeanors (let’s call these minor misdemeanors).  Section 19.2-74(A)(2) prohibits custodial arrests for minor misdemeanors by indicating that in these cases “the arresting officer shall take the name and address of [the] person [cited for the minor misdemeanor] and issue a summons” and “shall forthwith release him from custody.”  Section 19.2-74(A)(2) creates exceptions to this requirement in situations where 1) the arrested person refuses to give a written promise to appear in court, 2) the arrested person refuses to discontinue the unlawful act, or 3) the offense committed by the arrested person is public drunkenness.  These exceptions will seldom be present, so it is fair to say that Section 19.2-74(A)(2) does prohibit custodial arrests for virtually all minor misdemeanors (except public drunkenness).

 

            Section 19.2-74(A)(1) prohibits custodial arrests for serious misdemeanors committed in the presence of the arresting officer.  It was my failure to focus on this “in such officer’s presence” language that caused me to misstate the overall effect of Section 19.2-74 on the authority of Virginia law enforcement officers to make custodial arrests for misdemeanors.  (My thanks to ___________ for helping me to see that this was the key to my misunderstanding of Section 19.2-74(A)(1)). 

 

            Often my understanding of a statute (as well as my ability to remember it) is aided by determining what seems to have been the reason behind the adoption of that provision.  At common law, the rule was that the police could not make arrests for misdemeanors without a warrant unless the offense occurred in the presence of the officer making the arrest.  In the absence of statutes to the contrary, states follow this common law rule.  Section 19.2-74 seems to suggest that the Virginia General Assembly disfavors taking into custody persons who have committed misdemeanors.  Section 19.2-74(A)(2) extends this attitude to all Class 3 and Class 4 misdemeanors (except public drunkenness).  Section 19.2-74(A)(1) extends this attitude to Class 1 and Class 2 misdemeanors committed in the presence of the arresting officer. 

 

Section 19.2-74(A)(1) seems to be saying it is acceptable, however, to make a custodial arrest for serious misdemeanors if the offense did not occur in the arresting officer’s presence.  At first, this may seem like an odd approach because one might think the arresting officer’s basis for concluding that an offense occurred is stronger when the offense occurred in her presence than when it did not.  Therefore, we should be more (not less) comfortable with custodial arrests where the officer observed the offense.  However, this is where the common law arrest rule enters the picture.  The General Assembly may have felt that there is a stronger basis for arrest (and thus greater comfort with a custodial arrest) when the offense was not observed by the arresting officer because arrests in these cases will be based on an arrest warrant.  The involvement of a judicial officer (whom the law generally views as more objective than the police in making probable cause determinations) in issuing the warrant would thus increase our confidence in the basis for the arrest and make a custodial arrest more acceptable. 

 

            The problem with this conclusion is that the General Assembly has taken other actions that seem inconsistent with this approach.  Section 19.2-81 permits warrantless arrests for some misdemeanors, even if the offenses are not observed by the arresting officer.  In other words, §19.2-81 creates exceptions to the common law misdemeanor arrest rule.  Prior to 1988, those exceptions were limited to arrests for shoplifting and battery.  (Of course, the recently enacted §19.2-81.3 now requires that custodial arrests be made for some batteries).  Since 1988, the General Assembly has added three more exceptions:  destruction of property, carrying a weapon on school property, and brandishing a firearm.  Nearly all the §19.2-81 exceptions are Class 1 misdemeanors.  Thus, these exceptions expand the authority of the police in Virginia to make custodial arrests without the involvement of a magistrate for Class 1 misdemeanors that do not occur in their presence.

 

            What, then, is the present law in Virginia concerning custodial arrests for misdemeanors?

 

 

Let’s examine a few scenarios to see how these rules would apply.  In Scenario 1, Officer Hernandez receives a call to go to a tavern where a fight is in progress.  When Hernandez arrives at the bar, there is no fight in progress.  Hernandez talks to a bartender and two customers in the bar.  All three tell Hernandez that Adams and Bancroft (both of whom are still in the bar) had argued with each other off and on through the course of the evening.  Finally, a fight broke out between the two, in which each landed several punches on the other.  Hernandez has probable cause to arrest Adams and Bancroft for battery, a Class 1 misdemeanor.  The battery did not occur in the presence of the Hernandez, so §19.2-74(A)(1) does not prohibit a custodial arrest.  While the common law misdemeanor arrest rule would have required Hernandez to obtain an arrest warrant, §19.2-81 permits him to arrest Adams and Bancroft without an arrest warrant.

 

What if (in Scenario 2) Adams and Bancroft are still fighting when Hernandez arrives?  Since the battery is occurring in Hernandez’ presence, §19.2-74(A)(1) seems to prohibit a custodial arrest.  One possible way to avoid this prohibition might be to establish (from witnesses) that Adams and Bancroft had landed punches before Hernandez arrived and make a custodial arrest for those batteries.  Another possibility (and the one I would prefer) is to note the language in §19.2-74(A)(1) that permits a custodial arrest “if any person is reasonably believed by the arresting officer to be likely to cause harm to himself or to any other person.”  Under the circumstances, it seems reasonable to conclude that Adams and Bancroft will resume their fight (and therefore cause harm to each other) if they are not taken into custody.

 

In Scenario 3, a “floor walker” at a mall department store observes a female customer take a bottle of perfume from an aisle display and place it in her purse.  When the customer leaves the store without paying for the perfume, the floor walker approaches the customer, obtains her name, and contacts Officer Walker, working in the vicinity of the mall.  Walker arrives at the mall five minutes later and arrests the customer.  Since the shoplifting did not occur in the presence of Walker, §19.2-74(A)(1) permits a custodial arrest and §19.2-81 permits a warrantless arrest.

 

What if Officer Walker (Scenario 4) is in the store himself at the time of the shoplifting and observes the customer take the perfume and leave the store with it?  Section 19.2-81 still permits an arrest without a warrant, but §19.2-74(A)(1) prohibits a custodial arrest.  This seems like an odd result since, as suggested earlier, the officer’s basis for probable cause is arguably stronger in Scenario 4 than in Scenario 3, since Officer Walker personally observed the shoplifting in Scenario and is not relying on the observations of a third party.

 

If I understood correctly the comments of one of you in class, at least one judge or Commonwealth’s Attorney has suggested that, in a situation similar to Scenario 4, the officer who observes the misdemeanor taking place should report her observations to another police officer who was not there and allow the second officer to make the custodial arrest.  The offense did not occur in the presence of the second officer, therefore §19.2-74(A)(1) does not prohibit him from making a custodial arrest.  Is this tactic permissible?  It certainly seems to comply with the “letter of the law.”  On the other hand, it seems to be a blatant effort to simply avoid the limitations on custodial arrests established by §19.2-74(A)(1) and is therefore inconsistent with the spirit of that provision.  In fact, it can be argued that if this tactic is permitted, it would virtually “gut” the limitations on custodial arrests established by §19.2-74(A)(1).  I have found no Virginia case law dealing with this issue.  My guess is that some judges would permit the use of this tactic, while other judges would not.

 

In reading again the Virginia appellate court decisions dealing with the authority of the police to make custodial arrests (see the bibliography at the end), I remember why I had come to the conclusion that §19.2-74(A)(1) prohibits custodial arrests for serious misdemeanors.  That conclusion was prompted by my reading of the Virginia Court of Appeals decision in West v. Commonwealth, 549 S.E.2d 605 (2001).  In that case, Detective Polak pulled over West because West’s vehicle had a 30-day tag that was partially obscured and had made a turn without signalling.  Polak asked West for his driver’s license.  When West was able to produce only a Virginia identification card and Polak confirmed that West did not have a valid driver’s license, Polak asked West to get out of the car, handcuffed him, and informed him that he was under arrest for driving without a license.  (“Driving without a license” is a Class 2 misdemeanor).

 

Shortly after making the arrest for driving without a license, Polak noticed a bulge in one of West’s shoes.  Polak looked in the shoe and discovered a bag of crack cocaine.  Polak’s discovery of the cocaine in West’s shoe was permissible only if it was part of a search incident to a valid custodial arrest.  The Virginia Court of Appeals ruled that §19.2-74 prohibited a custodial arrest in these circumstances and suppressed the cocaine.

 

Under our analysis of §19.2-74 above, the ruling in West is correct, but the court’s analysis is, in my opinion, misleading.  After concluding that the offenses for which West had been stopped did not fall within one of the situations that permits a custodial arrest in §19.2-74, the Court of Appeals indicated:

“The Commonwealth nevertheless argues that Polak had probable cause to believe appellant committed a Class 2 misdemeanor, a jailable offense, and that appellant was in the posture of a custodial arrest, and, therefore, the search was not unreasonable. Code §§ 19.2-74 …. specifically require[s] the issuance of a summons in lieu of a custodial arrest regardless of the classification of the misdemeanor offense. The officer is directed to take the name and address of the suspect, obtain his or her promise to appear, and release the suspect unless the facts warrant otherwise.”

 

Of course, one of the facts that would “warrant otherwise” is that the offense did not occur in the presence of the arresting officer.  However, nowhere in the West opinion is the “in the presence” language even mentioned.  The absence of any reference to this language, combined with an emphasis throughout the opinion that §19.2-74 creates a presumption against custodial arrests for misdemeanors, leaves the casual reader with an impression that §19.2-74  makes no significant distinctions between serious misdemeanors and minor misdemeanors.  As our discussion above demonstrates, §19.2-74 does indeed make an important distinction between these two groups of misdemeanors.

 

            If this discussion still seems unclear or if it raises other issues you would like to see discussed, please let me know.  You can email me at jcall@radford.edu, call me at 540-831-5391, or write down your question and send it to me at Box 6934, Radford University, Radford, VA 24142.  Thanks so much for being patient with me in my efforts to deal with this question.

 

 

§ 19.2-74. Issuance and service of summons in place of warrant in misdemeanor case; issuance of summons by special policemen and conservators of the peace.

A. 1. Whenever any person is detained by or is in the custody of an arresting officer for any violation committed in such officer's presence which offense is a violation of any county, city or town ordinance or of any provision of this Code punishable as a Class 1 or Class 2 misdemeanor or any other misdemeanor for which he may receive a jail sentence, except as otherwise provided in Title 46.2, or § 18.2-266, or an arrest on a warrant charging an offense for which a summons may be issued, and when specifically authorized by the judicial officer issuing the warrant, the arresting officer shall take the name and address of such person and issue a summons or otherwise notify him in writing to appear at a time and place to be specified in such summons or notice. Upon the giving by such person of his written promise to appear at such time and place, the officer shall forthwith release him from custody. However, if any such person shall fail or refuse to discontinue the unlawful act, the officer may proceed according to the provisions of § 19.2-82.

Anything in this section to the contrary notwithstanding, if any person is believed by the arresting officer to be likely to disregard a summons issued under the provisions of this subsection, or if any person is reasonably believed by the arresting officer to be likely to cause harm to himself or to any other person, a magistrate or other issuing authority having jurisdiction shall proceed according to the provisions of § 19.2-82.

2. Whenever any person is detained by or is in the custody of an arresting officer for a violation of any county, city, or town ordinance or of any provision of this Code, punishable as a Class 3 or Class 4 misdemeanor or any other misdemeanor for which he cannot receive a jail sentence, except as otherwise provided in Title 46.2, or to the offense of public drunkenness as defined in § 18.2-388, the arresting officer shall take the name and address of such person and issue a summons or otherwise notify him in writing to appear at a time and place to be specified in such summons or notice. Upon the giving of such person of his written promise to appear at such time and place, the officer shall forthwith release him from custody. However, if any such person shall fail or refuse to discontinue the unlawful act, the officer may proceed according to the provisions of § 19.2-82.

3. Any person so summoned shall not be held in custody after the issuance of such summons for the purpose of complying with the requirements of Chapter 23 (§ 19.2-387 et seq.) of this title. Reports to the Central Criminal Records Exchange concerning such persons shall be made after a disposition of guilt is entered as provided for in § 19.2-390.

Any person refusing to give such written promise to appear under the provisions of this section shall be taken immediately by the arresting or other police officer before a magistrate or other issuing authority having jurisdiction, who shall proceed according to provisions of § 19.2-82.

Any person who willfully violates his written promise to appear, given in accordance with this section, shall be treated in accordance with the provisions of § 19.2-128, regardless of the disposition of, and in addition to, the charge upon which he was originally arrested.

Any person charged with committing any violation of § 18.2-407 may be arrested and immediately brought before a magistrate who shall proceed as provided in § 19.2-82.

B. Special policemen of the counties as provided in § 15.2-1737, special policemen or conservators of the peace appointed under Chapter 2 (§ 19.2-12 et seq.) of this title and special policemen appointed by authority of a city's charter may issue summonses pursuant to this section, if such officers are in uniform, or displaying a badge of office. On application, the chief law-enforcement officer of the county or city shall supply each officer with a supply of summons forms, for which such officer shall account pursuant to regulation of such chief law-enforcement officer.

C. The summons used by a law-enforcement officer pursuant to this section shall be in form the same as the uniform summons for motor vehicle law violations as prescribed pursuant to § 46.2-388.