Search Issues – Misdemeanor Arrests
July 10, 2005 – 4:16 am
Russell McGuire heads The McGuire Consulting Group, LLC, a constitutional and criminal law training and consulting company. He has presented training seminars on legal issues at the academy in the past. Currently, he is a special prosecutor in the office of the Attorney General, although he is on active duty in Iraq at this time. He is a contributing author to the VML Brief Cases newsletter. The summer 2005 issues contained a review of the Moore v. Commonwealth case and Rusty’s comments regarding the issues of the case and he recommends that we refresh your knowledge of search and seizure laws as they relate to misdemeanor arrests.
Arrest/Misdemeanor section 19.2-74
Moore v. Commonwealth, Record No. 26480301 February 22, 2005 (Court of Appeals of Virginia)
The officer arrested the defendant for driving on a suspended operators license. During the search incident to the arrest, the officer discovered crack cocaine on the defendant. The defendant moved that the evidence be suppressed because the officer had no grounds to arrest the defendant. The court agreed and dismissed the cocaine charge.
When we consider whether to search incident to an misdemeanor arrest, we first need to read section 19.2-74 closely. You will notice that in all misdemeanors you start with the position that you shall release the person on a summons. If they are released on a summons, you cannot perform a search incident to an arrest. The exceptions that allow you to arrest and perform the search are:
Class 1 & 2 Misdemeanors
- Fail or refuse to discontinue the illegal act
- Person is a danger to himself or others
- Likely to disregard the summons
- Refuse to sign the summons
Charged with D.U.I. Class 3 & 4 Misdemeanors
- Fail or refuse to discontinue the illegal act
- Refuse to sign the summons
- Remaining at place of riot after warning
As long as the officer can articulate any of these facts, they can make a custodial arrest. adjudications because the statute does not specifically authorize the use of them.