May an Officer Stop a Car to Serve an Occupant with a Subpoena or Other Civil Process?

Suppose that Victor Victim was the victim of a non-fatal shooting. Law enforcement has charged Dan Defendant with the crime, but Victor is not enthusiastic about testifying against Dan and has not cooperated with the police and the prosecutor in the run-up to the trial. The State has issued a subpoena to compel Victor’s attendance. Olga Officer is out looking for Victor when she sees him driving by. May Olga stop Victor’s car in order to serve him with the subpoena?

It happens. The practice of stopping drivers to effect service of a subpoena was discussed in Lewis v. Arnold, 2019 WL 6188624 (C.D. Cal. Oct. 17, 2019) (unpublished). The case arose when officers pulled a man over at least partly to serve him with a subpoena. The service was unwelcome and the man assaulted one of the officers. In the course of the resulting criminal trial, the officer who was assaulted testified that he asked his fellow officers to pull the defendant over “because he intended to serve him with the subpoena.” He further testified that he “believed that he could lawfully order the brief detention of [the defendant’s] vehicle to serve the subpoena.” During the defense case, a retired officer testified that “officers do stop cars to serve the driver with a subpoena.” See also Doss v. Young, 2011 WL 13235040 (W.D. Tex. May 27, 2011) (unpublished) (noting that an officer stopped an individual “to serve a subpoena” and suggesting in passing that this was “routine police work”). Although these references to the practice are from other states, it is my understanding that officers in at least some departments here in North Carolina also stop vehicles to serve subpoenas from time to time.

It is lawful, maybe. I was surprised to find so little authority on the legality of this practice. The single most pertinent authority I found was State v. Pole, 261 N.C. App. 774 (2018) (unpublished), a case in which officers stopped the defendant’s vehicle in order to execute a search warrant on the defendant and the vehicle. The court upheld the stop, stating that “officers are authorized to stop a person in a vehicle in order to serve various kinds of legal process such as criminal summonses, N.C. Gen. Stat. § 15A-303 (2013), citations, id. § 15A-302, nontestimonial identification orders, id. § 15A-277, subpoenas, id. §§ 15A-801, -802; 1A-1, Rule 45(e), and any other kind of legal process that does not permit officers to take a person into custody”). Pole relied on the analysis of former School of Government faculty member Bob Farb, who wrote on page 51 of the 2016 edition of his treatise Arrest, Search, and Investigation in North Carolina that at least as to subpoenas, “[a]n officer who personally serves a subpoena clearly may stop a person to serve it.”

An unpublished case from an intermediate appellate court and a viewpoint expressed in a treatise may not be such overwhelming authority as to completely settle the matter. On the other side of the ledger, consider Ex Parte Jaramillo, 2013 WL 3283211 (Tex. Ct. Crim. App. June 26, 2013) (unpublished). The Jaramillo court considered a case where the defendant “was a passenger in a truck that was stopped by police attempting to serve a grand jury subpoena.” The stop led to a search and to the discovery of drugs in the car. The defendant was charged with drug crimes and his counsel didn’t contest the stop. Later the defendant collaterally attacked his conviction, claiming that his counsel was ineffective. The reviewing court agreed, noting that the stop “was not based on reasonable suspicion or probable cause” and seemingly concluding that it was unlawful. The court therefore vacated the defendant’s conviction.

Different results for different kinds of civil process? So far, this post has focused mainly on the service of subpoenas. But subpoenas are not the only type of civil process an officer might stop someone to serve, and the lawfulness of the stop might depend on the type of civil process. The ultimate command of the Fourth Amendment is that searches and seizures be reasonable, and reasonableness requires a balancing of the public interest against individual liberty interests. See, e.g., New Jersey v. TLO, 469 U.S. 325 (1985) (“Although the underlying command of the Fourth Amendment is always that searches and seizures be reasonable, what is reasonable depends on the context within which a search takes place,” and requires a balancing of the government’s interests against the individual’s). The public interest in serving, for example, a DVPO may be higher than the public interest in service of a subpoena. In State v. Driskell, 276 P.3d 838 (Kan. Ct. App. 2012), the Kansas Court of Appeals ruled that it was permissible to stop a vehicle to serve a DVPO. But see Commonwealth v. Sanborn, 77 N.E.3d 274 (SJC Mass. 2017) (holding that officers generally may not stop vehicles to serve DVPOs as the court “cannot authorize a stop in the absence of a constitutional justification, such as a warrant, reasonable suspicion of criminal activity or a civil traffic violation, or a reasonable belief that emergency intervention is required”).

If an officer stops a car to serve the driver, the stop should be limited in scope. In a typical traffic stop, based on reasonable suspicion of a motor vehicle violation, the officer may order the driver and other occupants out of the vehicle; may run computer checks on the driver’s license and the vehicle registration; and may keep the vehicle stopped for whatever time is reasonably necessary to complete the purpose of the stop. But if a stop is based solely on the need to serve a subpoena or other civil process, I doubt that the officer may do all those things. Courts might see those things as unreasonable intrusions when the purpose of the stop can be satisfied with a quick “here’s a piece of paper, you’re served.” I’m not suggesting that an officer should ignore crimes in plain view, but in general, the more quickly a stop for the purpose of serving papers can be completed, the more likely it is to pass legal muster.