[Author’s Note: This post has been substantively edited to make corrections in response to helpful comments from readers.]
A person generally may not lawfully be arrested unless there is probable cause to believe he has committed a crime. But there are several exceptions to this rule. Most involve arrests made pursuant to an order for arrest issued by a judicial official. A judicial official may, for example, issue an order for the arrest of a defendant who fails to appear in court or who violates conditions of probation. See G.S. 15A-305(b). And there is one circumstance in which a law enforcement officer may, without a judicial order or warrant for the defendant’s arrest and without probable cause to believe a crime has been committed, arrest a defendant. That’s when the officer has probable cause to believe the defendant has violated a condition of pretrial release. G.S. 15A-401(b)(1),(b)(2)(f.).
Arrests for violations of pretrial release conditions. The General Assembly amended G.S. 15A-401(b) in 2011 to authorize officers to make warrantless arrests of a defendant based on probable cause that the person had violated a condition of pretrial release, regardless of whether the violation occurred in or out of the officer’s presence. Those amendments were effective for violations of pretrial release conditions that occurred on or after December 1, 2011. Before that time, officers were authorized to make warrantless arrests for defendants who were charged with crimes of domestic violence and who violated a condition of release for that crime, but were not permitted to arrest defendants who were charged with other types of crimes for a violation of their pretrial release conditions. See S.L. 2004-186, Sections 13.1 -.2. Under current law, officers may arrest for any pretrial release violation, regardless of the nature of the underlying offense. See G.S. 15A-401(b)(1), (b)(2)(f.) (authorizing arrest based on probable cause that defendant has violated pretrial release order under G.S. 15A-534 (which governs the determination of conditions of pretrial release for crimes generally) or G.S. 15A-534.1(which governs the setting of pretrial release conditions for crimes of domestic violence)).
What happens when a person is arrested? Upon arresting a defendant for a violation of a pretrial release order, an officer must take the defendant before a magistrate for an initial appearance. G.S. 15A-501(2); 15A-511(a). The magistrate must first determine whether there is probable cause to believe that the defendant violated the conditions of release. Then, if the magistrate finds probable cause, he or she must set new conditions of initial release. The magistrate does not modify his or her earlier release order; instead he or she imposes new conditions of release, which supersede the prior release order.
No authority to hold. There is no statutory authority authorizing a magistrate to hold a defendant charged with violating a condition of pretrial release without setting new conditions of release. Confusion about this issue abounds when a defendant who was initially charged with a crime of domestic violence is arrested for violation of the pretrial release order. This might occur if, for example, the defendant was ordered to have no contact with the victim and he is later discovered in the victim’s home with the victim’s consent. An officer who learns of the defendant’s presence may arrest the defendant based on probable cause that the defendant has violated the pretrial release order. The defendant in this circumstance has not, however, committed a new crime, much less a crime of domestic violence. Thus, a magistrate must set conditions of release at the defendant’s initial appearance following his arrest.
Is this constitutional? Some defendants have complained that being arrested for a violation of an order based on conduct that is not itself a crime is unconstitutional. None of those complaints appear to have reached our appellate courts. If and when they do, I’m skeptical about their prospects for success. Other courts have recognized that when a defendant “breach[es] a condition of the bond originally set by the court, [he] forfeits the right to continued release under the terms of that bond.” State v. Paul, 783 So.2d 1042 (Fla. 2001). That same sort of reasoning appears to underlie the legislature’s authorizing of officers to arrest for violations of pretrial release orders.