Citizen’s arrests are permitted to a certain extent by Virginia caselaw, says Fairfax criminal lawyer

Citizen’s arrests (CA’s) are permitted to a certain extent by Virginia appellate caselaw. As a Fairfax criminal lawyer, I know that a police officer without jurisdiction to act as a police officer generally is empowered by Virginia appellate caselaw to detain and arrest people the same as if acting as a private citizen, and that this is not necessarily changed merely because the law enforcement officer shows their badge or operates their police cruiser’s emergency lights and sirens. Hudson v. Commonwealth of Virginia, 266 Va. 371 (2003). At the same time, arguments can be advanced against a police officer without jurisdiction to exercise any more detention or arrest powers than a citizen would have. Id. and Neiss v. Virginia, 16 Va. App. 807 (1993). The Constitution’s Fourth Amendment and Virginia statutory and caselaw are front and center in this matter.

What does the Virginia Supreme Court say about a citizen’s arrest?

The Virginia Supreme Court says the following about CA’s : “At common law, a private citizen may arrest another for a breach of the peace committed in his presence. See Gustke, 516 S.E.2d at 291–92; see also Carroll v. United States, 267 U.S. 132, 156–57 (1925) (‘”‘In cases of misdemeanor, a peace officer like a private person has at common law no power of arresting without a warrant except when a breach of the peace has been committed in his presence ….”‘ (quoting 9 Halsbury’s Laws of England 612)); accord W. Page Keeton, ed., Prosser and Keeton on the Law of Torts § 26 (5th ed. 1984) (‘Broadly speaking, either an officer or a private citizen may arrest without a warrant to prevent a felony or a breach of the peace which is being committed … in his presence.’) (footnotes omitted). Despite argument on brief that he could only be the subject of a citizen’s arrest for a felony, Hudson conceded at trial that ‘any normal citizen can pull somebody over for breach of the peace.'” Hudson, 266 Va. at 378.

Will I get mileage by arguing that a LEO without jurisdiction lost their CA power by using their police marks of authority?

In the Hudson Virginia Supreme Court citizen’s arrest case, Petersburg City police officer Wills A was off duty in Chesterfield County, Virginia, while wearing his uniform, and activated his unmarked police cruiser’s emergency lights when seeing Hudson driving erratically. Wills commanded Hudson to remain in his car, and at one point brandished his service firearm. Hudson did not investigate nor interrogate Hudson, but instead remained “at his police car behind Hudson’s vehicle until Officer McCullough of the Chesterfield County Police Department arrived. At no time did Officer Wills see Hudson driving within the city limits” of Petersburg and at no time was Officer Wills within one mile of the Petersburg city limits during his observation and stop of Hudson. Hudson denied relief for officer Wills’s using and displaying the trappings of his status of a police officer in another jurisdiction. Instead, Hudson proclaims that officer Wills at the time was acting as a private citizen, and makes significant that Wills did not investigate Hudson and instead waited for police with jurisdiction to arrive. Hudson. 

What if my Virginia arrest was by a police officer acting outside their jurisdiction and outside their right to effectuate a CA?

As a Fairfax criminal lawyer, I know it is very important for your criminal defense attorney to be ready to argue that your LEO without jurisdiction did not have authority to effectuate a citizen’s arrest. The “power of a policeman to make an arrest by virtue of his office is subject to well-recognized territorial limits.”… A police officer may act only within the jurisdictional limits that the officer serves or within a statutorily prescribed distance from the jurisdictional limits. … Code § 19.2–249 provides that a police officer may arrest in an adjacent jurisdiction if the arrest takes place within three hundred yards of the jurisdictional boundary. Notwithstanding the jurisdictional restrictions of Code § 19.2–249, a police officer has the authority to arrest an individual, with or without a warrant, beyond three hundred yards into the adjoining jurisdiction if, under the circumstances, the ‘escape, flight and pursuit’ exception to the jurisdictional limitation applies. Under Code § 19.2–77, a police officer may arrest a person anywhere within the Commonwealth, if the officer is in ‘close pursuit’ of the person, and the person is fleeing from an officer attempting to make an arrest or is escaping police custody.” Neiss v. Virginia, 16 Va. App. at 809. 

Fairfax criminal lawyer Jonathan Katz knows that a full court press for your defense against Virginia felony, misdemeanor and DUI prosecutions calls for an ever-updated flowchart, rather than staking all bets on only one argument or approach. Secure your free, in-person initial confidential consultation with Jon Katz at 703-383-1100, Info@Katzjustice.com and (text) 571-406-7268.