Sep 22, 2020 Warrantless Virginia misdemeanor arrests- When they are permitted & not
Warrantless Virginia misdemeanor arrests may spell a prosecutor’s defeat when the cop is not a witness, says Fairfax criminal lawyer
Warrantless Virginia misdemeanor arrests call for careful criminal defense attorney analysis about the permissibility or not of that arrest when the police officer did not observe the allegedly criminal activity. As a Fairfax criminal lawyer, I review all such arrests with a fine-toothed comb for possible defense victory. The general Virginia criminal law rule is that law enforcement officers “may arrest without a warrant any person who commits any crime in the presence of the officer and any person whom he has reasonable grounds or probable cause to suspect of having committed a felony not in his presence.” Va. Code § 19.2-81(B).
When is a warrantless Virginia misdemeanor arrest allowed when the alleged crime is not committed in the police officer’s presence?
Following are the only exceptions to the foregoing bar on warrantless Virginia misdemeanor arrests when not committed in the presence of the law enforcement officer: DUI (within three hours of the alleged offense), boating under the influence of alcohol or drugs, shoplifting, assault and battery, motor vehicle theft, a motor vehicle or boating accident rising to the level of a crime (for instance reckless driving), an existing charge with a crime in another jurisdiction, when the police officer receives a law enforcement agency radio message that a misdemeanor arrest warrant or capias is on file for the suspect, carrying a weapon on school property, brandishing a firearm, and destruction of business property.
What benefit does a criminal defendant get for an unlawful warrantless Virginia misdemeanor arrest?
A prosecutor may struggle to argue that inevitable discovery makes an unlawful warrantless Virginia arrest meaningless in criminal court, with the only possible remedy being a civil lawsuit for unlawful arrest. Quite the contrary. An unlawful arrest means suppressing the fruits that result from that unlawful arrest, including post-arrest search, identification by a civilian, and even discovering the defendant’s name, because a defendant’s identity must be suppressed as the fruit of an unlawful arrest where the “defendant’s identity and connection with unlawful activity were only first discovered through the illegal detention.” Zimmerman v. Virginia, 234 Va. 609 (1988).
Police are here to protect us and not to run roughshod on our Constitutional and statutory rights
Virginia can be an inhospitable place for criminal defendants, includings its harsh presumptions of no pretrial bond, harsh sentencing and mandatory minimum sentence schemes, mandatory jury trials (and attendant jury sentencing) unless both parties waive a jury trial, and still-crabbed District Court discovery rules. When criminal defendants have such potential gold to argue as an unlawful Warrantless Virginia misdemeanor arrest, it is time for the criminal defense lawyer to milk that for all it is worth.
Fairfax criminal lawyer Jonathan L. Katz knows that victory against Virginia felony, misdemeanor and DUI prosecutions often comes from painstaking panning for gold, rather than always from riveting courtroom drama. Call 703-383-1100 for a free in-person confidential consultation with Jon Katz about your court-pending criminal or DWI case.