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Thread: VA Supreme Court - no more arrests or searches for misdemeanor offenses in VA!

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    See Moore v. Commonwealth (Va. 2006) at http://www.courts.state.va.us/opinio...wp/1052619.pdf.

    What this means is that the plain reading of the VA Code on arrests is valid law, and warrantless arrest of suspected misdemeanants is presumptively not allowed - the police, including MWAA police, cannot arrest anyone for even gun related misdemeanors, or lawfully search them or their vehiclespursuant tosuch an unlawful arrest,unless several narrow exceptions apply.


    The court said it all at the beginning with regard to statutopry construction: ". . . [Va. Code] § 19.2-74(A)(1). In pertinent part, this Code section provides that when a police officer detains a person for a Class 1 misdemeanor, the officer “shall . . . issue a summons . . . to appear at a time and place to be specified in such summons,” and “upon the giving by such person of his written promise to appear at such time and place, the officer shall forthwith release him from custody.” The Code section also contains several exceptions allowing a warrantless arrest pursuant to Code § 19.2-82 “if any such person shall fail or refuse to discontinue the unlawful act” or “if any person is believed by the arresting officer to be likely to disregard a summons . . . or . . . cause harm to himself or to any other person.”


    So if any gun owners out there get arrested on some weird charge, unless the charge is a felony, they should just receive a summons and keep right on trukin', without search of your car or person.

    Under the courts rule announced in Moore, you are unlawfully arrested or searched incident to be cited for a misdemeanor violation, then your rights have been violated, evidence seized will be suppressed, and the police conduct may be actionable in other ways for damages or other relief.

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    Here are some examples of the power of this ruling.

    1. Suppose you are pulled over for suspected speeding; you present your DL, registration, and the police notice your openly carried handgun on you hip holster, and ask for your CHP. You state: "Officer, I don't need a CHP to open carry." The officer states: "But your gun is covered up by your seatbelt and I think you were concealing it - you are under arrest and I now need to search you whole car."

    Under Moore: Blaaaaaaang [penalty buzzer]. The officer is simply supposed to issue you a summons for this alleged misdemeanor violation, and has no authoirty to conduct a full search of your person or vehicle.

    2. Suppose you open carry up to the doors of a VA courthouse in good faith seeking help from the Sheriff's deputies to store your handgun while you enter the courthouse to reapply for your CHP. A deputy states: "Hey, no guns in here, you are under arrest, I need to search your person."

    Under Moore: Blaaaaaaang [penalty buzzer]. The officer is simply supposed to issue you a summons for this alleged misdemeanor violation.

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    It sounds like this could have saved our friend in Haymarket a lot of trouble when the police dragged him off to jail for the threatening phone call (misdemeanor). Although thats assuming that the Haymarket police respect the law in the first place!

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    Good point, but unfortunately, the Haymarket police convinced a magistrate to issue an arrest warrant specifying custodial arrest - that is an area of law we must look into next for further control - as you know, the facts specified on the police request for a warrant did not even allege the elements of the offense!

    if you live in Prince William County, where the Chief judge there controls the magistrates, you might want to write a letter to the chief judge to ask him to consider reigning in his magistrates a bit since the VA SC decision in Moore.

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    Update:

    The U.S. Supreme Court is going to hear oral arguments in Moore on January 14th. Hopefully they will affirm the ruling of the VA Supreme Court. Below are some links that might interest anyone following this case.

    VA Supreme Court Opinion:
    http://www.courts.state.va.us/opinio...wp/1052619.pdf

    SCOTUS Blog article:
    http://www.scotusblog.com/wp/uncateg...ginia-v-moore/

    Commonwealth's brief to SCOTUS:
    http://www.abanet.org/publiced/previ...Petitioner.pdf

    Moore's brief to SCOTUS:
    http://www.scotusblog.com/wp/wp-cont...06-1082bs1.pdf

    DOJ's amicus brief in support of the Commonwealth:
    http://www.usdoj.gov/osg/briefs/2007...82.mer.ami.pdf

    ACLU's amicus brief in support of Moore:
    http://www.aclu.org/pdfs/scotus/virg...acluamicus.pdf


    Here is a good overview of Moore along with some analysis of it's importance:
    http://www.drbilllong.com/SupCt/Moore.html


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    TEX1N wrote:
    It sounds like this could have saved our friend in Haymarket a lot of trouble when the police dragged him off to jail for the threatening phone call (misdemeanor). Although thats assuming that the Haymarket police respect the law in the first place!
    Not to mention the poor guy that got arrested for leaving a mag in his pocket at the courthourse...

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    I had no idea this had been appealed.


    I'll make you an offer: I will argue and fight for all of your rights, if you will do the same for me. That is the only way freedom can work. We have to respect all rights, all the time--and strive to win the rights of the other guy as much as for ourselves.

    If I am equal to another, how can I legitimately govern him without his express individual consent?

    There is no human being on earth I hate so much I would actually vote to inflict government upon him.

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    "VA Supreme Court - no more arrests or searches for misdemeanor offenses in VA!"

    Your title line is not completely accurate and is very misleading...

    You can be arrested for a misdemeanor charge in Virginia! I am confident that this is not what you were implying.

    Itis correct that the policeshall release on a summons when possible for misdemeanor charges. There are some exceptions when this may not be an option and the person CAN be taken into physically custody. At that time a search can take place forthe misdemeanor charge.

    A few examples that can end up getting you physically arrested and searched:

    • Failure to discontinue the unlawful act
    • Refusal to sign the summons
    • Officer's belief you will not appear in court(statements or history)
    • Inability to understand the summons
    • Inability to prove who you are (class I and II only)
    • A continued danger to others or yourself
    • Remaining at a place of riot or unlawful assembly
    • Appearingintoxicated in public

    There should be no search taking place if the person is just receiving a summons. This is not something new. This has been out for a while now and I can easily say more than a year.

    You may wish to review this Virginia code section.

    § 19.2-74. Issuance and service of summons in place of warrant in misdemeanor case

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    TEX1N wrote:
    It sounds like this could have saved our friend in Haymarket a lot of trouble when the police dragged him off to jail for the threatening phone call (misdemeanor). Although thats assuming that the Haymarket police respect the law in the first place!
    Could you elaborate a little bit more on this incident since I live out that way?


    In the final seconds of your life, just before your killer is about to dispatch you to that great eternal darkness, what would you rather have in your hand? A cell phone or a gun?

    Si vis pacem, para bellum.

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    LEO 229 wrote:
    "VA Supreme Court - no more arrests or searches for misdemeanor offenses in VA!"

    Your title line is not completely accurate and is very misleading...

    You can be arrested for a misdemeanor charge in Virginia! I am confident that this is not what you were implying.

    Itis correct that the policeshall release on a summons when possible for misdemeanor charges. There are some exceptions when this may not be an option and the person CAN be taken into physically custody. At that time a search can take place forthe misdemeanor charge.

    A few examples that can end up getting you physically arrested and searched:

    • Failure to discontinue the unlawful act
    • Refusal to sign the summons
    • Officer's belief you will not appear in court (statements or history)
    • Inability to understand the summons
    • Inability to prove who you are (class I and II only)
    • A continued danger to others or yourself
    • Remaining at a place of riot or unlawful assembly
    • Appearingintoxicated in public
    There should be no search taking place if the person is just receiving a summons. This is not something new. This has been out for a while now and I can easily say more than a year.

    You may wish to review this Virginia code section.

    § 19.2-74. Issuance and service of summons in place of warrant in misdemeanor case
    There are also misdemeanor charges that say you will be arrested also.

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    Uh oh - looks like Delegate Jeff Frederick is NOT our friend:

    HB 435 Law-enforcement officer; penalty for failure to identify oneself when requested.

    HB 436 Arrest or summons; charge for misdemeanor at discretion of law-enforcement officer.


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    http://leg1.state.va.us/cgi-bin/legp...00+cod+19.2-74

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    § 19.2-74. Issuance and service of summons in place of warrant in misdemeanor case; issuance of summons by special policemen and conservators of the peace.

    A. 1. Whenever any person is detained by or is in the custody of an arresting officer for any violation committed in such officer's presence which offense is a violation of any county, city or town ordinance or of any provision of this Code punishable as a Class 1 or Class 2 misdemeanor or any other misdemeanor for which he may receive a jail sentence, except as otherwise provided in Title 46.2, or § 18.2-266, or an arrest on a warrant charging an offense for which a summons may be issued, and when specifically authorized by the judicial officer issuing the warrant, the arresting officer shall take the name and address of such person and issue a summons or otherwise notify him in writing to appear at a time and place to be specified in such summons or notice. Upon the giving by such person of his written promise to appear at such time and place, the officer shall forthwith release him from custody. However, if any such person shall fail or refuse to discontinue the unlawful act, the officer may proceed according to the provisions of § 19.2-82.

    Anything in this section to the contrary notwithstanding, if any person is believed by the arresting officer to be likely to disregard a summons issued under the provisions of this subsection, or if any person is reasonably believed by the arresting officer to be likely to cause harm to himself or to any other person, a magistrate or other issuing authority having jurisdiction shall proceed according to the provisions of § 19.2-82.

    2. Whenever any person is detained by or is in the custody of an arresting officer for a violation of any county, city, or town ordinance or of any provision of this Code, punishable as a Class 3 or Class 4 misdemeanor or any other misdemeanor for which he cannot receive a jail sentence, except as otherwise provided in Title 46.2, or to the offense of public drunkenness as defined in § 18.2-388, the arresting officer shall take the name and address of such person and issue a summons or otherwise notify him in writing to appear at a time and place to be specified in such summons or notice. Upon the giving of such person of his written promise to appear at such time and place, the officer shall forthwith release him from custody. However, if any such person shall fail or refuse to discontinue the unlawful act, the officer may proceed according to the provisions of § 19.2-82.

    3. Any person so summoned shall not be held in custody after the issuance of such summons for the purpose of complying with the requirements of Chapter 23 (§ 19.2-387 et seq.) of this title. Reports to the Central Criminal Records Exchange concerning such persons shall be made after a disposition of guilt is entered as provided for in § 19.2-390.

    Any person refusing to give such written promise to appear under the provisions of this section shall be taken immediately by the arresting or other police officer before a magistrate or other issuing authority having jurisdiction, who shall proceed according to provisions of § 19.2-82.

    Any person who willfully violates his written promise to appear, given in accordance with this section, shall be treated in accordance with the provisions of § 19.2-128, regardless of the disposition of, and in addition to, the charge upon which he was originally arrested.

    Any person charged with committing any violation of § 18.2-407 may be arrested and immediately brought before a magistrate who shall proceed as provided in § 19.2-82.

    B. Special policemen of the counties as provided in § 15.2-1737, special policemen or conservators of the peace appointed under Chapter 2 (§ 19.2-12 et seq.) of this title and special policemen appointed by authority of a city's charter may issue summonses pursuant to this section, if such officers are in uniform, or displaying a badge of office. On application, the chief law-enforcement officer of the county or city shall supply each officer with a supply of summons forms, for which such officer shall account pursuant to regulation of such chief law-enforcement officer.

    C. The summons used by a law-enforcement officer pursuant to this section shall be in form the same as the uniform summons for motor vehicle law violations as prescribed pursuant to § 46.2-388.

    (Code 1950, § 19.1-92.1; 1973, c. 98; 1974, c. 481; 1975, c. 495; 1976, c. 753; 1978, c. 500; 1979, cc. 679, 680; 1980, c. 492; 1981, c. 382; 1982, cc. 485, 500; 1984, c. 24; 1988, c. 455; 1995, c. 471.)
    [line]http://leg1.state.va.us/cgi-bin/legp...00+cod+19.2-82

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    § 19.2-82. Procedure upon arrest without warrant.

    A. A person arrested without a warrant shall be brought forthwith before a magistrate or other issuing authority having jurisdiction who shall proceed to examine the officer making the arrest under oath. If the magistrate or other issuing authority having jurisdiction has lawful probable cause upon which to believe that a criminal offense has been committed, and that the person arrested has committed such offense, he shall issue either a warrant under the provisions of § 19.2-72 or a summons under the provisions of § 19.2-73.

    As used in this section the term "brought before a magistrate or other issuing authority having jurisdiction" shall include a personal appearance before such authority or any two-way electronic video and audio communication meeting the requirements of § 19.2-3.1, in order that the accused and the arresting officer may simultaneously see and speak to such magistrate or authority. If electronic means are used, any documents filed may be transmitted in accordance with § 19.2-3.1.

    If a warrant is issued the case shall thereafter be disposed of under the provisions of §§ 19.2-183 through 19.2-190, if the issuing officer is a judge; under the provisions of §§ 19.2-119 through 19.2-134, if the issuing officer is a magistrate or other issuing officer having jurisdiction.

    If such warrant or summons is not issued, the person so arrested shall be released.

    B. A warrant may be issued pursuant to this section, where the person has been arrested in accordance with § 19.2-81.6, and the magistrate or other issuing authority examines the officer making the arrest under oath, and finds lawful probable cause to believe the arrested individual meets the conditions of clauses (i) and (ii) of § 19.2-81.6. If such warrant is issued, it shall recite § 19.2-81.6 and the applicable violation of federal criminal law previously confirmed with the Bureau of Immigration and Customs Enforcement. Upon the person being taken into federal custody, such state warrant shall be dismissed. Any warrant issued under this subsection shall expire within 72 hours, or when the person is taken into federal custody, whichever occurs first. Recurrent applications for a warrant under this subsection shall not be permitted within a six-month period.

    (Code 1950, § 19.1-100.1; 1968, c. 639; 1975, c. 495; 1981, c. 382; 1983, c. 564; 1984, c. 766; 1991, c. 41; 2002, c. 310; 2004, cc. 360, 412.)
    [line]
    § 18.2-407. Remaining at place of riot or unlawful assembly after warning to disperse.
    Every person, except the owner or lessee of the premises, his family and nonrioting guests, and public officers and persons assisting them, who remains at the place of any riot or unlawful assembly after having been lawfully warned to disperse, shall be guilty of a Class 3 misdemeanor.
    (Code 1950, § 18.1-254.4; 1968, c. 460; 1971, Ex. Sess., c. 251; 1975, cc. 14, 15.)
    [line]
    Edited for format, emphasis, 18.2-407

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    Mike wrote:
    Uh oh - looks like Delegate Jeff Frederick is NOT our friend:

    HB 435 Law-enforcement officer; penalty for failure to identify oneself when requested.

    HB 436 Arrest or summons; charge for misdemeanor at discretion of law-enforcement officer.
    Note, since Mike may not be available to amend his post: the VA Legis site had a hiccup and incorrectly listed Frederick as the sponsor. The two referenced bills are sponsored by Jackson Miller.

    See:
    http://leg1.state.va.us/cgi-bin/legp...?081+sum+HB435
    http://opencarry.mywowbb.com/forum54/7285.html
    ---

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    LEO 229 wrote:
    "VA Supreme Court - no more arrests or searches for misdemeanor offenses in VA!"

    Your title line is not completely accurate and is very misleading...

    You can be arrested for a misdemeanor charge in Virginia! I am confident that this is not what you were implying.

    Itis correct that the policeshall release on a summons when possible for misdemeanor charges. There are some exceptions when this may not be an option and the person CAN be taken into physically custody. At that time a search can take place forthe misdemeanor charge.

    A few examples that can end up getting you physically arrested and searched:
    • Failure to discontinue the unlawful act
    • Refusal to sign the summons
    • Officer's belief you will not appear in court (statements or history)
    • Inability to understand the summons
    • Inability to prove who you are (class I and II only)
    • A continued danger to others or yourself
    • Remaining at a place of riot or unlawful assembly
    • Appearingintoxicated in public
    There should be no search taking place if the person is just receiving a summons. This is not something new. This has been out for a while now and I can easily say more than a year.

    You may wish to review this Virginia code section.

    § 19.2-74. Issuance and service of summons in place of warrant in misdemeanor case
    Doesn't Virginia have a "Search Incident to Arrest" clause though? For Officer Safety?


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    xd.40 wrote:
    Doesn't Virginia have a "Search Incident to Arrest" clause though? For Officer Safety?
    This was exploited in the past when a summons arrest was completed. Some LEOs would take advantage of the "search incident to an arrest" since it was technically... an arrest... Just on paper.

    On November 3, 2006, the Virginia Supreme Court ruled that the arrest and search of Mr. Moore was unlawful. This was because none of the exceptions in 192.-74 were present.

    So now it has been identified that a LEO can no longer search when releasing on a summons.

    Not to be confused with a pat down of the outer clothing for officer safety... This is not a full blown search.

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    Ah ok - so with this ruling, there is no "arrest" (when being released on a summons) so there will be no search. Gotcha. Thanks for the info.

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    xd.40 wrote:
    Doesn't Virginia have a "Search Incident to Arrest" clause though? For Officer Safety?
    Yes, but it only applies if the officer has the author to physically arrest you and not if he is just writing you a summons to appear. See § 19.2-74 and Commonwealth v. Moore (currently on appeal to the U.S. Supreme Court).


    EDIT: I didn't realize that LEO had answered your question when I posted...

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    TEX1N wrote:
    It sounds like this could have saved our friend in Haymarket a lot of trouble when the police dragged him off to jail for the threatening phone call (misdemeanor). Although thats assuming that the Haymarket police respect the law in the first place!
    Hey TEXIN. Could youtell this story again.. I live out that way and would love to hear what happened.


    In the final seconds of your life, just before your killer is about to dispatch you to that great eternal darkness, what would you rather have in your hand? A cell phone or a gun?

    Si vis pacem, para bellum.

    America First!

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    SouthernBoy wrote:
    TEX1N wrote:
    It sounds like this could have saved our friend in Haymarket a lot of trouble when the police dragged him off to jail for the threatening phone call (misdemeanor). Although thats assuming that the Haymarket police respect the law in the first place!
    Could you elaborate a little bit more on this incident since I live out that way?
    See the following VA-Alerts:

    Item #1:
    http://www2.vcdl.org/cgi-bin/wspd_cg...LTER=haymarket

    Item #8:
    http://www2.vcdl.org/cgi-bin/wspd_cg...LTER=haymarket

    Item #3:
    http://www2.vcdl.org/cgi-bin/wspd_cg...LTER=haymarket

    This entire alert:
    http://www2.vcdl.org/cgi-bin/wspd_cg...LTER=haymarket

    Items #4, 5, 6, & 7:
    http://www2.vcdl.org/cgi-bin/wspd_cg...LTER=haymarket

    Item #26:
    http://www2.vcdl.org/cgi-bin/wspd_cg...LTER=haymarket


    Be careful what you ask for! Enjoy!!!

  20. #20
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    Ah fond memories you bring up Tex!

    After the whole drama started to play out, I avoided Haymarket like the plauge. I've always thought OCDO should have a "10 Most Wanted" list of VA officals to be removed from office, impeached, voted out etc. Along with Penny Gross, these knuckleheads should earn a few of those top 10 slots.
    The problem with the internet is nobody can really tell when youre serious and when youre being sarcastic. Abraham Lincoln

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    ChinChin wrote:
    Ah fond memories you bring up Tex!

    After the whole drama started to play out, I avoided Haymarket like the plauge. I've always thought OCDO should have a "10 Most Wanted" list of VA officals to be removed from office, impeached, voted out etc. Along with Penny Gross, these knuckleheads should earn a few of those top 10 slots.
    And they could post them in all VA gun shops. So then you could go to the post office to see the most wanted criminals and the gun shop to see the most wanted public officials!

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    Thanks, TEX1N. I appreciate it. I do recall reading some of this a while back afterall. Have to get on their butts.

    In the final seconds of your life, just before your killer is about to dispatch you to that great eternal darkness, what would you rather have in your hand? A cell phone or a gun?

    Si vis pacem, para bellum.

    America First!

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    Doug Huffman wrote: Doug, that was nicely formatted! Putting all the exceptions in Bold was avery nice touch.

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