Apr 15, 2017 Virginia criminal defense – Three hour delay to arrest does not amount to stale probable cause
The Fourth Amendment to the United States Constitution limits police authority to stop, seize, and search people and their property. Sadly, the United States Supreme Court over the decades has limited the strength of the Fourth Amendment in numerous ways, including the horrendous Terry v. Ohio (392 U.S. 1 (1968)) jurisprudence that gives police a wide range of opportunities to stop and even frisk criminal suspects not for probable cause but only for reasonable articulable suspicion for a law violation.
What happens when police stop a suspect for a crime that took place three hours earlier, but instead end up searching and arresting the suspect for completely different crimes? Najee Finique Hairston learned the answer to that question on April 11, 2017, when the Virginia Court of Appeals okayed a police stop of Hairston three hours after he was observed driving recklessly by a police detective (who for whatever reason — possibly being unsure of her jurisdiction to stop — did not stop Hairston) and okayed the drug and suspended driving prosecution that followed after police stopped Hairston three hours after the reckless driving, searching his car after smelling marijuana, and finding in the car marijuana, synthetic marijuana and cocaine. Hairston v. Virginia, ___ Va. App. ___ (April 11, 2017).
Hairston challenged that any probable cause to stop and arrest him for reckless driving had become stale by the time police caught up with and stopped him three hours later. Hairston points to staleness occurring when the probable cause relied on by the police turns out to be invalid. Hairston explains:
“We conclude that the outcome here is … obvious and is based not on the passage of time but on the quality of information providing probable cause at the time that the seizure occurred. Well-reasoned decisions from other jurisdictions support this conclusion. ‘[T]here is no [constitutional] requirement that an offender be arrested the moment probable cause [to arrest] is established.’ United States v. Reis, 906 F.2d 284, 289 (7th Cir. 1990). Probable cause in the context of an arrest ‘grow[s] stale only if it emerges that it was based on [subsequently] discredited information.’ United States v. Bizier, 111 F.3d 214, 219 (1st Cir. 1997) (citing Watson, 423 U.S. at 432 n.5 (Powell, J., concurring)). In short, although probable cause for a search may grow stale, ‘probable cause to arrest, “once formed[,] will continue to exist for the indefinite future, [as long as] no intervening exculpatory facts come to light.”‘ Id. (quoting Watson, 423 U.S. at 449 (Marshall, J., dissenting)); Ronald J. Bacigal, Virginia Practice Series: Criminal Procedure § 4:10, at 98 & n.5 (2016-2017 ed.) (discussing staleness in the context of searches and arrests). Finally, these principles are consistent with the fact that ‘when probable cause exists, the timing of an arrest is a matter that the Constitution almost invariably leaves to police discretion.’ United States v. Winchenbach, 197 F.3d 548, 554 (1st Cir. 1999); cf. Maye v. Commonwealth, 44 Va. App. 463, 478, 605 S.E.2d 353, 360-61 (2004).”
Hairston concludes that stale probable cause is absent here, so Hairston’s conviction remains intact.