1-5 Arrest and Legal Authority

Policy Type: Local

Approved By: Chief of Police, Virginia Commonwealth University Police Department

Initial Policy Approved: 6/17/2014

Current Revision Approved: 3/3/2020

General

The purpose of this directive is to establish uniform procedures and guidelines for making lawful arrests by VCU Police Department (VCUPD) sworn officers, with and without a warrant, alternatives to full custodial arrests, and the exercise of lawful officer discretion. It is department policy that that all sworn personnel thoroughly understand the basic constitutional and statutory requirements for effecting a lawful arrest. The power to arrest deprives a person of liberty and freedom, and is one of the most serious responsibilities of a police officer. Therefore, whenever possible, arrests should be made with a valid arrest warrant. All arrestees must be afforded their full constitutional and statutory rights at the time of their arrest and at any time thereafter.

Accountability Statement

All employees are expected to fully comply with the guidelines and timelines set forth in this written directive. Failure to comply will result in appropriate corrective action. Responsibility rests with the division commander to ensure that any policy violations are investigated and appropriate training, counseling and/or disciplinary action is initiated.

Definitions

CUSTODY – A person is in custody when they, in the presence of a law enforcement officer, are not free to leave, and are thus deprived of their freedom of action in a significant way [Orozco v. TX, 394 U.S. 324 (1969)].
ARREST – When a person is taken into custody for the purposes of commencing a criminal action, an arrest has occurred [Dunaway v. NY, 442 U.S. 200 (1979)].
PROBABLE CAUSE – According to the U.S. Supreme Court, probable cause exists when the facts and circumstances, within the arresting officer’s knowledge and of which the arresting officer had reasonable trustworthy information of, are sufficient in themselves to warrant a person of reasonable caution to believe that an offense has been or is being committed by the suspect.
REASONABLE SUSPICION – Articulable facts which lead an experienced officer to reasonably suspect that a crime has been or is about to be committed. There must be well‐founded suspicion based on the totality of circumstances. Reasonable suspicion does not exist unless it can be articulated.
JURISDICTION OF ARREST – VCUPD officers have the power and authority to arrest within defined jurisdictional boundaries, and on property owned or leased by the university. See Written Directive 1-4 Agency Jurisdiction for additional information.
ARREST AUTHORITY - Pursuant to the Code of Virginia § 23.1-815, VCUPD officers have the authority to make criminal arrests as delineated in the provisions of Chapter 7 of Title 19.2 of the Code of Virginia.

Law Enforcement Discretion

Law enforcement operations consist of a range of activities that are directed toward achieving department objectives. Law enforcement activities, such as patrolling, conducting field interviews and issuing traffic citations, are not department objectives in themselves, but rather a means of pursuing crime deterrence and prevention, arresting criminal offenders, and preventing of traffic accidents.
Decisions in law enforcement operations frequently must be made in an instant, and the lives of officers and others may depend on the quality of these decisions. Officers are often confronted with stressful situations involving both criminal and non-criminal behavior, and they must base their conduct and actions upon experience, training, and good judgment.
Officers must act reasonably and within the legal limits their authority at all times. The reasonableness of law enforcement action(s) or what constitutes probable cause varies with each situation, and different facts and circumstances may justify an investigation, a detention, a search, an arrest, or no law enforcement action at all.

General Arrest Procedures

To execute an arrest, an officer must inform the person of the officer's arrest authority, and of the reason for the arrest. An officer usually causes the person arrested to be informed of their arrest authority by displaying their uniform and badge. Officers not in uniform shall, when practical, display their issued badge and/or identification and announce their status as a police officer.
Notice of the cause for arrest need not ordinarily be given until after custody has been taken; however, the officer shall inform the arrestee of the offense for which the arrest has been made as soon as practical after taking custody.
Pursuant to the Code of Virginia § 19.2-74, when a law enforcement officer detains a person for committing a Class 1 or 2 misdemeanor in the officer’s presence, the officer is required to release the accused on a summons unless one or more of the following apply:

The accused fails to sign the summons
The accused fails to discontinue the unlawful act
The officer believes the accused is likely to disregard the summons
The officer believes the accused is likely to cause harm to themselves or any other person
The accused is detained for an offense listed in subsection D of the Code of Virginia § 19.2-81

When a law enforcement officer detains a person for committing in the officer’s presence a Class 3 or 4 misdemeanor or any other misdemeanor for which the accused cannot receive a jail sentence, the Code of Virginia § 19.2-74 requires the officer to release the accused on a summons unless one or more of the following apply:

The accused fails to sign the summons
The accused fails to discontinue to the unlawful act
The accused is detained for being intoxicated in public in violation of the Code of Virginia § 18.2-388 or similar local ordinance
The accused is detained for remaining at a place of riot or unlawful assembly after having received a warning to disperse in violation of the Code of Virginia § 18.2-407 or a similar local ordinance
If any of the above apply, the officer must then arrest the accused and proceed according to the provisions contained in the Code of Virginia § 19.2-82

Once a person is arrested, they shall be taken, forthwith, before a magistrate where their rights shall be explained.
All arrests, including those of juveniles, must be in compliance with Virginia State laws. Additionally, officers must adhere to the following guidelines:

All offenses committed in the presence of an officer will be handled by the police officer at the scene, or in consultation with the supervisor, but always with strict adherence to § 19.2-81
If the offense did not occur in the officer's presence, all of the following actions must be taken:

The officer must notify their on-duty supervisor before a suspect is arrested
The on-duty supervisor must either respond to the scene or immediately contact the officer via telephone
The officer must relay the factual circumstances to the supervisor, who will then advise the officer whether an arrest is authorized or if further investigation is necessary

Officers are expected to be firm and resolute in exercising only necessary force when effecting an arrest and in performance of their duties. The use of any unnecessary force in the apprehension or restraint of a suspect is prohibited.
Officers must use all available resources to ensure the correct identification of any person arrested or confined. Officers must not rely upon similarity of names or upon incomplete information provided by other law enforcement agencies in confirming a subject’s identity. Every detail of a physical description or personal characteristics must be confirmed for accuracy.
Any request received from another law enforcement agency to arrest a person within VCUPD’s jurisdiction shall operate only as a request to locate the person if the request does not provide sufficient probable cause for the arrest or confirmation that a warrant or capias has been issued for the person. Originating agencies will be notified when such persons and/or vehicles are located by VCUPD.
Before officers may arrest, it must be established, to their individual satisfaction, that probable cause exists. Probable cause may be established through an officer's own observations or through statements of witnesses or other law enforcement officers.
In cases in which probable cause exists without immediate victim identification of a suspect, officers may attempt street identification.
In cases in which establishing probable cause is contingent upon a victim’s identification of a suspect, officers will attempt to bring the victim to the location of the suspect's detention, if possible. If this is not practical, the suspect may be taken to the scene of the crime if the suspect grants their permission.
An officer making a lawful arrest may command the aid of persons the officer deems necessary to effect the arrest. A person so commanded shall render assistance as directed or face penalty as provided by the Code of Virginia § 18.2-463.
Search procedures are addressed in Written Directive 1-10 Search and Seizure.

Arrests with a Warrant

An arrest warrant is an initial charging document issued in the name of a legal authority that is directed to officers authorized to serve criminal process, commanding an officer to take an individual into custody.

Before a warrant is issued, an officer must have probable cause to believe that a crime has been committed and that the person sought to be arrested committed it. Additionally, the following information must be provided:
1. Sworn statements of fact relating to the commission of an alleged offense. The magistrate may require the sworn statements to be reduced to writing and signed if the complainant is a law enforcement officer, but this is not typically required.
  1. Exception: A law enforcement officer is required to provide their sworn statements in writing to support a petition for an emergency protective order, as well as for warrants for driving under the influence and extradition.
2. The officer also must provide the name of the accused, or if their name is unknown, set forth a description by which they can be identified with reasonable certainty. So-called "John Doe" warrants, which do not contain a sufficient description, are illegal.
Refer to Written Directive 6-18 Executing Warrants and Subpoenaing Witnesses for additional information.

Warrantless Arrests

A VCUPD officer may effect a lawful warrantless arrest as follows (see Va. Code § 19.2-81):

An officer may arrest, without a warrant, any person who commits any crime in the presence of the officer and any person whom they have reasonable grounds or probable cause to suspect of having committed a felony not in their presence.
An officer can make an arrest without a warrant of any person at a traffic accident scene or at a hospital or medical facility to which any person involved in such accident has been transported, upon reasonable grounds to believe, based upon personal investigation, including information obtained from eyewitnesses, that a crime has been committed by any person then and there present. The arrest must be for a crime which arose from the accident [Paige v. Lynchburg, 390 S.E.2d 524 (Va. Ct. App. 1990)].
An officer may, within three hours of the alleged offense, arrest without a warrant at any location any person whom the officer has probable cause to suspect of driving or operating a motor vehicle while intoxicated in violation of § 18.2-266, 18.2-266.1 or 46.2-341.24, regardless of whether the offense was committed in the officer’s presence.
An officer may arrest for a misdemeanor, not committed in their presence, in any of the following cases:
1. Shoplifting in violation of § 18.2-96 or 18.2-103 or a similar local ordinance
2. Carrying a weapon on school property in violation of § 18.2-308.1
3. Brandishing a firearm in violation of § 18.2-282
4. Destruction of property located on business/commercial premises in violation of § 18.2-137
5. Assault and battery
6. When an officer receives a radio message from the department or other law enforcement agency within the Commonwealth confirming that a warrant for such offense is on file
Per the Code of Virginia § 19.2-81.3, an officer may also arrest without a warrant for any of the following, if such arrest is based on probable cause, personal observations, the reasonable complain of a person who observed the alleged offense, or upon person investigation:
1. Assault and battery against a family or household member
  1. Upon probable cause of such violation, the officer is to arrest the person whom the officer has probable cause to believe, based on the totality of the circumstances, was the predominant physical aggressor, unless there are physical circumstances which would dictate a course of action other than arrest.
2. Violation of a stalking protective order
3. Violation of any provision of a protective order regardless of whether such violation was committed in their presence, if such arrest is based on probable cause, upon personal observations, the reasonable complaint of a person who observed the alleged offense or upon personal investigation

Factors that justify a warrantless arrest:
1. Probable cause is required at the time of the arrest, which refers to the quantity of facts and circumstances within the officer’s knowledge that would warrant a reasonable person to conclude that the subject in question has committed a crime.
2. The following factors may be used to establish probable cause:
  1. Direct observations by the police officers
  2. Knowledge of a prior criminal record
  3. Flight – If a police officer has a reasonable suspicion for a stop and the person flees, flight elevates that suspicion to probable cause
  4. Evasive answers and/or conflicting stories
  5. Experience of the police officer in similar situations
  6. Time of day or night
  7. Reliable hearsay (receipt of information from reliable sources)
  8. Statements from other police officers. A police officer making an arrest need not have probable cause as long they rely upon information from another police officer who does have probable cause.
  9. Statements from informants may establish probable cause, but are subject to close scrutiny. The tip may serve as a basis for a valid probable cause arrest if reliability is established by:
    1. The informant’s tip containing specific details and
    2. The reliability of both the details and the informant being confirmed prior to the moment of arrest
With respect to warrantless arrest procedures, officers shall abide by all provisions set forth in the Code of Virginia § 19.2-82.

Arrests of Undocumented Immigrants

Due to the limited statutory authority to arrest undocumented aliens for violations of federal immigration laws under the Code of Virginia, VCU Police will not inquire or question individuals regarding their citizenship status during the normal course of law enforcement activities.
Pursuant to the Code of Virginia § 19.2-81.6, officers may, in the course of acting upon reasonable suspicion that an individual has committed or is committing a crime, arrest the individual without a warrant upon receiving confirmation from the Bureau of Immigration and Customs Enforcement (ICE) that the individual is both:
1. An alien illegally present in the United States
2. Previously been convicted of a felony in the United States and deported or left the United States after such conviction
Upon receiving confirmation, the officer shall take the individual forthwith before a magistrate or other issuing authority and proceed in accordance with the Code of Virginia § 19.2-81.
When an officer conducts an NCIC/VCIN inquiry on an individual and receives a “hit” on an Immigration Violators File (IVF) entry, the officer must adhere to the following procedures:
1. Carefully review the hit received through NCIC. There are two possible responses that will appear:
  1. “PREVIOUSLY DEPORTED FELON”
  2. “OUTSTANDING ADMINISTRATIVE WARRANT OF REMOVAL”
2. If the hit is for a “PREVIOUSLY DEPORTED FELON,” the following procedures apply:
  1. The officer shall confirm the hit through the United States ICE Law Enforcement Support Center (LESC) and request a detainer. Following confirmation of the hit and issuance of a detainer by LESC, the officer shall take the individual into custody and transport the individual to the Richmond Justice Center.
  2. If reasonable suspicion exists that the arrested individual has committed or was committing a separate offense, the arresting officer shall proceed pursuant to the provisions of the Code of Virginia § 19.2-81.6 and take the person before a magistrate to obtain the appropriate warrant. The arresting officer may also arrest and charge the person, as appropriate, with any other offenses for which probable cause exists.
  3. If reasonable suspicion does not exist that the arrested individual has committed or was committing a separate offense, the arresting officer may only act on the confirmation and detainer issued by the LESC for a “PREVIOUSLY DEPORTED FELON” and transfer custody to the Sheriff’s Office, which has established policies and practices in place with ICE.
    1. In these cases, detention by the arresting officer is supported because it is a criminal violation of federal law for any previously deported felon to illegally re-enter the United States.
3. Persons entered into NCIC with an “OUTSTANDING ADMINISTRATIVE WARRANT OF REMOVAL” are those who have allegedly failed to appear for a hearing or failed to leave the United States after being ordered to do so. The majority of administrative warrants represent civil violations of immigration law. If the IVF hit indicates there’s an “OUTSTANDING ADMINISTRATIVE WARRANT OF REMOVAL,” the following procedures apply:
  1. If the individual is not in custody or being taken into custody for any other violation of law, officers shall not confirm the hit through the LESC and shall not take the individual into custody based solely upon the IVF hit.
  2. If the officer has detained or taken the individual into custody for a Class 1 or 2 misdemeanor, or the individual is wanted on a separate criminal arrest warrant for which a releasable summons is authorized, the officer may take the NCIC response into consideration when determining whether the person is eligible for release on a summons in accordance with the provisions of the Code of Virginia § 19.2-74.
  3. If a person is being charged with a Class 1 or 2 misdemeanor, or is being served with a criminal arrest warrant for which a summons release is generally authorized, the arresting officer may determine that the person is likely to disregard a summons and take that person before a magistrate pursuant to the Code of Virginia § 19.2-74.

Entry of a Dwelling to Effect an Arrest

An arrest warrant is required before police can arrest an individual in their own home, absent exigent circumstances or consent [Payton v. NY, 445 U.S. 573 (1980)].
Warrantless in-home arrests may be justified by consent or exigent circumstances when one of the following occurs [U.S. v. Santana, 427 U.S. 38 (1976)]:

An arrest attempt outside the home is thwarted because the suspect retreated into the home
There is insufficient time to secure a warrant because the delay would allow the suspect to evade arrest or destroy evidence
The arrest officer is in “hot pursuit” and has probable cause to effect a valid arrest of the suspect

Police generally may not legally search for the subject of an arrest warrant in the home of a third party, absent exigent circumstances or consent, without first obtaining a search warrant for those premises [Steagald v. U.S., 451 U.S. 204 (1981)].
Unless exigent circumstances exist, the arresting officers must “knock and announce” their identity before entering to make the arrest [Richards v. Wisconsin, 520 U.S. 1154 (1997)].
1. An exigent circumstance would include reasonable suspicion that knocking and announcing would be dangerous, futile, or would inhibit effective investigation.

Alternatives to Arrest

In responding to violations of the law, VCUPD officers have the following alternatives to a custodial arrest:

Issuance of a misdemeanor summons
Issuance of verbal warnings

Warnings are normally utilized for minor motor vehicle violations, but not for serious motor vehicle violation incidents, such as DUI/DUID, operating on a suspended license, or reckless driving
Officers may issue warnings for nonviolent, lesser criminal violations, such as trespassing, loitering, etc.

Juvenile court diversion (see Written Directive 7-5 Juvenile Procedures for additional information)
Referral to the judicial system

Revision History

This policy supersedes the following archived policies:

6/17/2014 - 1-5 Arrest and Legal Authority