Did You Know?

Many people are of the persuasion (belief in propaganda) that law enforcement agents can arrest you for any infraction which violates any one of the plethora of statutes lining the walls of your local law library in a mind numbing array of volumes.

What most folks don’t know is that once upon a time they actually had rights; rights that superceded these voluminous extrapolations. Rights such as certain limitations upon the capacity to arrest an American citizen with or without an arrest warrant.

Let me touch on just a couple and see if these don’t surprise you just a little.

To begin this little expose, it is a maxim of law that if it was once a right, it is still a right and there can be no legislation which would abrogate it. With this in mind let us look at the question of arrest without a warrant from the court’s point of view. The Supreme Court of Appeals of Virginia declared: “The common law relating to arrest is the law on that subject in Virginia. At common law a peace officer may arrest without a warrant for a breach of the peace committed in his presence, but for no other misdemeanor.” Galligher v. Commonwealth, 161 Va. 1014, 170 S.E. 734, 736 (1933), authorities cited.

Where a person was arrested without warrant and charged with “public drunkenness,” which resulted in charges of “resisting arrest,” it was held by the Supreme Court of North Carolina that the arrest was illegal as the state failed to make a prima facie case by showing that the defendant’s conduct at the time of arrest amounted to either an actual or threatened breach of peace. The court said “it is manifest that mere drunkenness unaccompanied by language or conduct which creates public disorder amounting to a breach of the peace, will not justify arrest without a warrant,” and that “not every misdemeanor is a breach of the peace.” In a very well-reasoned decision on the subject of arrests, the Court held: “It has always been the general rule of the common law that ordinarily an arrest should not be made without warrant and that, subject to well-defined exceptions, an arrest without warrant is deemed unlawful. 4 Bl. Comm. 289 et seq.; 6 C.J.S., Arrest, § 5, p. 579. This foundation principle of the common law, designed and intended to protect the people against the abuses of arbitrary arrests, is of ancient origin. It derives from assurances of Magna Carta and harmonizes with the spirit of our constitutional precepts that the people should be secure in their persons. Nevertheless, to this general rule that no man should be taken into custody of the law without the sanction of a warrant or other judicial authority, the processes of the early English common law, in deference to the requirements of public security, worked out a number of exceptions. These exceptions related in the main to cases involving felonies and suspected felonies and to breaches of the peace (authorities cited). State v. Mobley, 240 N.C. 476, 83 S.E.2d 100, 102 (1954).

Now that I have your curiosity and maybe even some deeper interest, check this out from the Supreme Court of North Carolina. It held that “the overwhelming weight of authority” for misdemeanor charges, is that the officer “must have the warrant in his possession.” The Court said: “In 6 C.J.S., Arrest, § 4, p. 576 et seq., we find the general rule stated as follows: “The warrant must at the time of arrest be in the possession of and with the person purporting to act thereunder or of one with whom he is acting in conjunction. * * * Accordingly, where the warrant is at the officer’s house some distance from the scene of the arrest, or in the hands of another who is not at the scene of arrest, or in the central office of a city detective bureau, the arrest is unlawful.” Alexander v. Lindsey, 230 N.C. 663, 55 S.E.2d 470, 474 (1949).

One last thing: “When an officer arrests a person without a warrant, the burden rests upon the officer to plead and prove justification. Otherwise the arrest is prima facie unlawful.” Evans v. Jorgenson, 182 Minn. 282, 234 N.W. 292, 293 (1931), and; “The plaintiff need not prove that the imprisonment was unlawful or malicious, but establishes a prima facie case if he proves that he was imprisoned by the defendant; the onus then lies on the defendant of proving a justification. Earl of Halsbury, The Laws of England, vol. 38, 3rd Ed., Pt. 4, § 1266, p. 765, London, 1962.

It gets even more interesting as you follow this line of reasoning by the courts themselves.

Want to hear MORE? Check out our meetings on Thursday’s.

Bill.