I’ve Been Arrested . . . But Committed No Crime

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[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.

10 comments on “I’ve Been Arrested . . . But Committed No Crime

  1. A couple of questions for clarification, if you (or anyone) has a moment to address them:

    What proof of the pretrial release order does the officer need to provide when making such an arrest? For example, magistrates require a copy of the 50B order (not the DCI printout) when arrests on 50B violations are made. Would the officer need a court copy of the pretrial release order to present to the magistrate when he brings the violator before him/her?

    “Given that there is no statutory authority to hold a defendant for the purposes of making such a determination, the State must move expeditiously to bring the defendant before a judge.” So what are the options when there is no judge immediately available? (Say on a weekend, holiday or even midnight why judges are typically sleeping.) Can the person not be held at the detention center for any length of time before appearing before a judge? It seems to be a rather sticky spot to put the officer and magistrate in.

    Thanks for the article and the good info.

  2. There is no statutory authority to hold a defendant charged with violating a condition of pretrial release.

    JW SChrecker: Did we all somehow forget that “Contempt of Court” is a CRIME in North Carolina? That is all the “statutory authority to hold a defendant” that I need in these issues. A condition of pretrial release is adherence to the court’s instructions set forth and if one “contemptuously” fails to follow those instruction (regardless of what the “victim” thinks or does) there exists “statutory authority to hold a defendant”. Specifically #3 which serves as a “catch all” despite defense attorneys complaints to the contrary. If a judge has placed a restriction on you – you simply can not legally ignore it.

    § 5A-11. Criminal contempt

    (a) Except as provided in subsection (b), each of the following is criminal contempt:

    (1) Willful behavior committed during the sitting of a court and directly tending to interrupt its proceedings.

    (2) Willful behavior committed during the sitting of a court in its immediate view and presence and directly tending to impair the respect due its authority.

    (3) Willful disobedience of, resistance to, or interference with a court’s lawful process, order, directive, or instruction or its execution.

    (4) Willful refusal to be sworn or affirmed as a witness, or, when so sworn or affirmed, willful refusal to answer any legal and proper question when the refusal is not legally justified.

    (5) Willful publication of a report of the proceedings in a court that is grossly inaccurate and presents a clear and present danger of imminent and serious threat to the administration of justice, made with knowledge that it was false or with reckless disregard of whether it was false. No person, however, may be punished for publishing a truthful report of proceedings in a court.

    (6) Willful or grossly negligent failure by an officer of the court to perform his duties in an official transaction.

    (7) Willful or grossly negligent failure to comply with schedules and practices of the court resulting in substantial interference with the business of the court.

    (8) Willful refusal to testify or produce other information upon the order of a judge acting pursuant to Article 61 of Chapter 15A, Granting of Immunity to Witnesses.

    (9) Willful communication with a juror in an improper attempt to influence his deliberations.

    (9a) Willful refusal by a defendant to comply with a condition of probation.

    (9b) Willful refusal to accept post‑release supervision or to comply with the terms of post‑release supervision by a prisoner whose offense requiring post‑release supervision is a reportable conviction subject to the registration requirement of Article 27A of Chapter 14 of the General Statutes. For purposes of this subdivision, “willful refusal to accept post‑release supervision or to comply with the terms of post‑release supervision” includes, but is not limited to, knowingly violating the terms of post‑release supervision in order to be returned to prison to serve out the remainder of the supervisee’s sentence.

    (10) Any other act or omission specified elsewhere in the General Statutes of North Carolina as grounds for criminal contempt. The grounds for criminal contempt specified here are exclusive, regardless of any other grounds for criminal contempt which existed at common law.

    (b) No person may be held in contempt under this section on the basis of the content of any broadcast, publication, or other communication unless it presents a clear and present danger of an imminent and serious threat to the administration of criminal justice.

    (c) This section is subject to the provisions of G.S. 7A-276.1, Court orders prohibiting publication or broadcast of reports of open court proceedings or reports of public records banned. (1977, c. 711, s. 3; 1994, Ex. Sess., c. 19, s. 1.; 2011)

    § 5A-12. Punishment; circumstances for fine or imprisonment; reduction of punishment;
    circumstances for fine or imprisonment; reduction of punishment; other measures

    § 5A-13. Direct and indirect criminal contempt; proceedings required

    § 5A-14. Summary proceedings for contempt

    § 5A-15. Plenary proceedings for contempt

    § 5A-16. Custody of person charged with criminal contempt

    § 5A-21. Civil contempt; imprisonment to compel compliance

    § 5A-22. Release when civil contempt no longer continues

    § 5A-23. Proceedings for civil contempt

    § 5A-24. Appeals

    § 5A-25. Proceedings as for contempt and civil contempt

  3. The argument does not hold water. In NC if the complainant simply asks the defendant to come into their home or presence, gives permission to, despite their previous objection and instigation of the courts order, then they are, by law, allowed to be in that persons presence. It is upon the officer to investigate before making the arrest. If they fail to properly investigate it is a constitutional violation since we have the right to be treated according to the law. In my case I was arrested after calling 911 about someone breaking into my building. The officer told me to leave my property and allow the perpetrator to use my building, where he was perpetrating a crime against other children, and I refused to leave. He then physically broke my knee and damaged my back to the point that both needed to be operated on. Yet, no one knows, no attorney that is, knows how this is a violation of my constitutional rights. Oh please?!!! LOL

  4. In response to the comment about contempt as possible basis for holding a person without setting new pretrial release conditions, it’s worth noting the following: (1) Magistrates may hold a person in jail without setting new pretrial release conditions only if they have statutory authority to do so. Contempt is not specified as a basis for a hold. (2) A violation of a condition of release may or may not constitute contempt; some courts have held that a pretrial release order, being conditional, authorizes re-arrest and the setting of new, potentially stricter release conditions for a failure to comply but not contempt. (3) Assuming a violation of a pretrial release condition can be charged as a contempt, no contempt charge has been issued when a person is arrested for violating a pretrial release condition. And, magistrates do not have the authority to institute contempt charges for “indirect” contempt, that is, a violation that occurs outside of court. For those reasons, I agree with the article that a magistrate may not hold a person without setting new pretrial release conditions.

  5. I disagree with Mr. Schrecker.

    NC GS 5A-13(B) states, “Any criminal contempt other than direct criminal contempt is indirect criminal contempt and is punishable only after proceedings in accordance with the procedure required by G.S. 5A-15.” 5A-15 states in part, “Proceedings under this section are before a district court judge unless a court superior to the district court issued the order, in which case the proceedings are before that court.” Violating the court order for pretrial release found in the CR-200 would be “indirect” if even considered contempt at all. A magistrate therefore cannot hold someone for criminal contempt for “indirect” reasons because a plenary proceeding before at least a district court judge must be held. A show cause order would be issued for the hearing.
    A magistrate would use form AOC-CR-219 and direct the person for a plenary contempt proceeding. If the magistrate found probable cause to believe that the person will not appear in response to the show cause order, the magistrate could issue an order for arrest; however the magistrate still must initiate a new CR-200 (condition of release). So there is no authority for a magistrate to hold without setting conditions of release beyond a temporary holding under NC GS 15a-511(a) (3), but the key here is the settings of release conditions must still be done with a reasonable time.

  6. ~IACP/BJA/PJI PRETRIAL ISSUES FOCUS GROUP MEETING; WEDNESDAY, APRIL 14, 2010

    Defendants currently released on financial bond often commit additional crimes or become fugitives. Presumably, because there are so many perceived holes in the existing pretrial justice system, they feel that they can commit other crimes or fail to appear in court with little or no consequences. Effective pretrial services programs,
    however, can provide swift and certain consequences to those who do not comply with the conditions of their pretrial release. Also, jurisdictions that ensure that bail-jumping statues, which make willful failure to appear a separate crime, are enacted and vigorously prosecuted, which can help deter and bring appropriate punishment to those defendants who do fail to appear in court. With rapid sanctions for noncompliance of these conditions, pretrial services programs can send a message to violating defendants and to the community at large that no one will be allowed to flee justice.

    See Seals v. United States, No. 03-CO-51, slip. op. (D.C. Feb. 11, 2004).
    (The Appellate court upheld a three-year sentence for contempt of court for not following the conditions of pretrial release, based on the defendant’s criminal history and non-compliance with the court).

  7. “… orfeits the right to continued release under the terms of that bond …” Well, if that were not so, then why would a bond be set (in the first place)? Or what use would it be to base pretrial releases on conditions if those could not be enforced? However that may be, the question is if offenses need to lead to “incarceration” or if it might not suffice to impose fines or other means of “retribution” that might equally serve the purpose of discouraging violations?

  8. Over several years time my now ex husbands girlfriend has had me charged and arrested 7-8 times and I haven’t been found guilty, now she has done this again, I was arrested for assault and communicating threats, which once again I did not do. How can I make this stop?

    • Kiley, I am experiencing the exact same thing with my ex-wife. I found this sight while looking up the role of magistrates in NC. Personally, I feel they are part to blame for my predicament. My ex-wife and I had an argument over her drug use in front of our 10 year old son. I told her if I hear it happens again I will go to the police. She panicked, went to a magistrate and he put an order for my arrest for stalking. I have never stalked her but she was able to get this charge on me without any evidence or police investigation. A week later her boyfriend was following me with a video camera and I was arrested again for breaking the terms of release when they said I was in her driveway. Once again, she lied and no evidence. This has happened to me in the past, 5 other times. Every time I was found not guilty including the most recent. 7 times total I have been dragged through the court system. My name was in the newspaper arrest report the last two times. My reputation is destroyed and I have suffered severe emotional distress because the magistrates did not do any type of investigation. Anyone can go to them and lie to have someone arrested. This is wrong. I would like to see the magistrates held accountable. I have been looking for ways to stop it. So far I have written letters to every magistrate explaining my situation and asking them to make sure there is evidence besides her word before they order any arrest in the future. Next, I am going to file a complaint with the head district judge regarding the incompetence of the magistrate who dealt with my last case. Finally, I am looking to file a civil suit against my ex wife for defamation. Hopefully she will think twice about doing it again. If I come up with any other ways to stop it, I will post or we can exchange emails. I am tired of it too. It is disappointing that the NC magistrates have this type of power with no police investigation required. Your not alone. After researching the subject I have found many other people going through the same injustice.

      • Magistrates in NC are very political. They are appointed by judges, and yes they subvert justice with dirty politics. Not all states allow a person to run to the magistrate and swear out a warrant, so many warrants in NC are frivolous and malicious. I have been on the receiving end of several of them, all dismissed with prejudice. It’s not the destination; it’s the ride, a rough ride to ruin your life and waste your time and resources. It’s using the “stalking” laws to stalk. But the big money rules. Lady Justice may be blind, but she smells money.
        NC is also one of those pathetic states with the absurd new legal definition of “stalking,” a by-product of radical feminism and of the VAWA and its DC pipeline of revenue sharing. A stalking warrant or restraining order can be based on a couple of insults, utterly subjective in the mind of the “victim” who then runs to the clerk or magistrate and rides the free wagon. These officials and the judges have been trained to molly-coddle paranoia and hysteria. All the courts of NC have been gamed with this trickery and hucksterism.
        For example, the chief judge in Charlotte complained to his Senator Jeff Tarte that the courthouse was swamped with Ch.50 restraining order prosecutions, 772 of them in fiscal 2012, all of those 772 frivolous and malicious. What did the General Assembly do? Well, essentially nothing. After their lawyer Hal Pell warned legislators if they altered the statute, or repealed it, to stop the hemorrhaging, they would lose millions in revenue from DC. So they stuck a little band-aid on it permitting the judge to order attorney fees to the wronged party. I can assure you the outrages are still rampant. And most victims of these outrages cannot afford attorneys.
        I assure you the band-aid didn’t do anything but appease the ignorant. As for the law professors in NC, they have done or said nothing to cut out this cancer of injustice, even though they must know of the vast damage it has done to Constitutional rights.

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