About a year ago, I wrote this post, discussing what was then a new provision in G.S. 15A-304(b): “[A]n official shall only find probable cause based solely on information provided by a person who is not a sworn law enforcement officer if the information is provided by written affidavit.” This year, the General Assembly reversed course and removed the affidavit requirement. Continue reading
Tag Archives: arrest warrants
Easy Come, Easy Go: Legislature Removes Affidavit Requirement for Citizen-Initiated Criminal Process
A colleague stopped into my office the other day to ask “did the General Assembly get rid of citizen-initiated warrants?” No, but it did make some significant changes to the procedure. Continue reading →
What to Do About Outstanding Arrest Warrants
Have you ever been involved in a case in which the defendant was convicted of a criminal charge, did his time, and then was served with an outstanding warrant even though the warrant was pending when he was convicted of the other charge? If the warrant had been served earlier, the defendant could have taken care all of his criminal business at once. Doing so would save the court time, allow the State to come up with an appropriate resolution of all the charges, and allow the defendant to coordinate his defense and, if convicted, seek concurrent sentences or a combination of active and probationary time. If resolved before a single court at the same time, the charges could be consolidated for judgment (G.S. 15A-1340.15(b)) and also would result in fewer prior record points (G.S. 15A-1340.14(d)).
A little-noticed piece of legislation from 2015, S.L. 2015-48 (H 570), attempts to address the problem of unserved warrants. Effective October 1, 2015, the legislation directs law enforcement agencies, the Division of Adult Correction, prosecutors, and the courts to identify and attempt to resolve outstanding warrants while other charges are pending or the defendant is in custody.
Fascinating Footnote 3
The most famous footnote in all the world is generally acknowledged to be footnote 4 in United States v. Carolene Products Company, 304 U.S. 144 (1938). That footnote introduced to constitutional law the concept of tiered levels of scrutiny, an idea that deeply influenced the subsequent evolution of equal protection jurisprudence. Although not likely destined for footnote 4 status, a footnote in a recent court of appeals decision captured my interest.
The case is State v. Harwood, __ N.C. App. __ (2012). The case began when a Buncombe County officer received an anonymous tip that, later that day, the defendant would be selling marijuana at a particular convenience store, and that the defendant would be driving a “white vehicle.” The officer had heard from “people in the community” that the defendant had “supposedly” been selling drugs for some time. The officer, joined by a colleague, went to the convenience store, and saw the defendant pulling out of the parking lot in a white vehicle. The officers followed. The defendant accelerated, then pulled into a housing development and into the driveway of a residence where he did not live. The officers pulled in behind him, approached the vehicle, and handcuffed the defendant at gunpoint. The officers apparently read the defendant his Miranda rights, and he admitted selling drugs and agreed to let the officers search his home, where they found more drugs and a gun. At some point after the initial stop, the officers determined that there was an outstanding arrest warrant for the defendant. The defendant was charged with various drug and firearm offenses.
The defendant moved to suppress, arguing that the officers lacked reasonable suspicion for the stop. The motion was denied by the trial judge, the defendant was convicted, and he appealed. The court of appeals ruled for the defendant. First, the court concluded that although the officers did not conduct a traffic stop, they nonetheless seized the defendant by detaining and handcuffing him. Second, the court found that the officers did not have reasonable suspicion to support the detention. The court stated that the anonymous tip was not detailed and that there was little to corroborate it other than the defendant’s mere presence at the store. That part of the opinion is pretty interesting, and the issue strikes me as a closer call than the opinion suggests it is, but it isn’t what I want to focus on.
At one point in its brief, the state argues:
Even if this Court finds that there was insufficient probable cause to arrest the defendant based on the activities on 15 July 2010, there was already an outstanding warrant for defendant’s arrest. The Agents could have lawfully taken him into custody based on that outstanding warrant.
There are two possible interpretations of this argument. The state could be arguing that the warrant, once it became known to the officers, justified escalating the stop into a full-blown arrest. Or it could be arguing that the entire interaction, including the stop, was justified based on the outstanding warrant, even though that warrant was unknown to the officers at the time of the stop.
In footnote 3, the court addresses this argument:
Although the State asserts in its brief that the existence of a warrant authorizing Defendant’s arrest justified the decision of the investigating officers to take him into custody, it has not cited any authority in support of that proposition and we have not found any such authority in the course of our own research. A careful examination of the record discloses that the investigating officers did not know that this warrant existed at the time that they detained Defendant and decided to detain him because they believed that they had sufficient “reasonable articulable suspicion” to do so. As a result, we take no position concerning the validity of the State’s assertion.
I’m intrigued, but confused. It seems like the court is saying that the state is arguing that the outstanding warrant justified the decision to “detain” the defendant, i.e., that the entire interaction was justified by the outstanding warrant. So it seems as though the court is adopting the second of the two possible readings I outlined above. But if that is the state’s argument, how can the court rule for the defendant while “tak[ing] no position concerning the validity” of that argument? How can the court conclude that the stop is bad without rejecting an argument that could support the stop?
I should add that, if that is what the state is arguing, it isn’t a ridiculous argument. In Whren v. United States, 517 U.S. 806 (1996), the Supreme Court stated that whether a stop is reasonable under the Fourth Amendment is an objective question, one in which “the actual motivations of individual officers” plays no role. Objectively, one could argue, stopping and arresting a person who is subject to an outstanding warrant is eminently reasonable. There aren’t a lot of cases on point, but the Ohio Court of Appeals accepted an argument along those lines in City of Dayton v. Click, 1994 WL 543210 (Ohio Ct. App. 2 Dist. Oct. 5, 1994) (unpublished). In Click, officers stopped the defendant without reasonable suspicion but court ruled that the defendant “had no reasonable expectation of privacy . . . because . . . there were outstanding warrants for his arrest” notwithstanding the fact that “the officers were not aware of their duty to arrest [the defendant] until approximately twenty minutes after the stop.”
However, Click and its progeny were overruled in the later case of State v. Gardner, 2011 WL 5328637 (Ohio Ct. App. 2 Dist. Nov. 4, 2011) (unpublished). A smattering of other cases are generally in accordance with Gardner. Moreno v. Baca, 431 F.3d 633 (9th Cir. 2005) (suspicionless arrest and search were not retroactively rendered reasonable when it was later revealed that the suspect had an outstanding arrest warrant); Fulson v. City of Columbus, 801 F.Supp. 1 (S.D. Ohio 1992) (denying summary judgment in civil rights action based on assertedly unlawful arrest and stating that “[i]f . . . the officers did not know about the outstanding warrants, and if there was no other valid basis for plaintiff’s arrest, then plaintiff may be able to establish that his arrest was invalid, even if there were in fact warrants outstanding for plaintiff’s arrest”). So although the state’s argument is at least colorable, courts seem generally to have rejected it.
The narrower reading of the state’s argument – that the arrest warrant did not justify the initial stop, but did justify the conversion of the stop into an arrest – could be developed into another pretty interesting argument. The state might argue that even if the initial stop was faulty, the officers’ subsequent discovery of the arrest warrant provided an intervening basis for the defendant’s detention and arrest, and so purged the taint of the unlawful stop as to any statements made by the defendant and any evidence found after the officers learned of the arrest warrant. The court of appeals concluded that the defendant’s statement and his consent to search “directly resulted from the investigating officers’ decision to detain him,” and that nothing purged the taint of the initial stop, but it didn’t directly address the possibility that the discovery of the arrest warrant could have purged the taint. It doesn’t sound like the state advanced that argument, at least not in that precise form. It isn’t clear from the opinion or the state’s brief when the arrest warrant was discovered, so maybe the facts wouldn’t support the argument. But if the facts support it, it’s a decent argument, one that has divided a number of courts across the country. Michael Kimberly, Comment, Discovering Arrest Warrants: Intervening Police Conduct and Foreseeability, 118 Yale L.J. 177 (2008) (collecting cases, and noting split of authority concerning “whether the discovery of an outstanding warrant in the course of an illegal detention dissipates the ‘taint’ of the initial illegality, permitting entry of evidence seized in a search incident to arrest”); State v. Hill, 725 So.2d 1282 (La. 1998) (taint of improper Terry stop attenuated by subsequent discovery of outstanding warrants; faulty stop did not render inadmissible evidence seized during search incident to arrest).
Footnote 3 may be no footnote 4, but it certainly provides some food for thought.
Officers and NCAWARE
NCAWARE is an acronym for the North CArolina WArrant REpository. It is the computer system that is used by judicial officials, usually magistrates, to create criminal process documents such as arrest warrants and criminal summonses. The documents are stored permanently in the system, and can be viewed by anyone with access to the system. The system is available through the internet to criminal justice officials with a password.
Passwords are held both by law enforcement officers and by court officials. Law enforcement agencies must register with the Administrative Office of the Courts, which developed and maintains NCAWARE, to allow their officers to use NCAWARE. See G.S. 15A-301.1(a)(2) (providing for access by “all authorized law enforcement officers and agencies”). Apparently there are multiple levels of access, with some officers only being able to view documents in the system while others are also able to print documents from the system. My impression is that any law enforcement agency may choose to participate and that most have done so. So an officer in Cherokee County may be able to view, and print a copy of, an arrest warrant originally issued by a magistrate in Currituck County.
NCAWARE replaces an older computer system, called simply the “Magistrates’ System,” that magistrates used to generate many criminal processes. That system was more limited in a variety of ways, one of which was that officers had little or no field access to the documents created in it.
The legal groundwork for NCAWARE was laid in S.L. 2002-64, which created G.S. 15A-101.1 and G.S. 15A-301.1. Some of the relevant provisions in those statutes are discussed below. NCAWARE was rolled out gradually across the state, starting in 2008, and today is used in 98 of the state’s 100 counties. Mecklenburg and Buncombe are the exceptions, though the word on the street is that implementation in Mecklenburg may be coming soon. You can read more about NCAWARE here, on the AOC website.
The widespread use of NCAWARE, especially by law enforcement officers, has resulted in a couple of issues cropping up. I’ve had enough questions that I thought that I would do a post. Consider the following:
Officer Olivia learns where Sam Suspect is living. She checks NCAWARE on her car computer, and sees that there is an outstanding arrest warrant for Sam. She drives to Sam’s house and sees his car in the driveway. In order to get inside the home, may she rely on G.S. 15A-401(e)(1), which allows an officer to enter private premises to effect an arrest when the officer “has in his possession a warrant or order or a copy of the warrant or order” authorizing the arrest of a person in the premises? In other words, does having an electronic version of the warrant on her computer mean that Olivia “possesses” the warrant? Or does she need a printed copy?
Olivia clearly does not have a “copy” of the warrant within the meaning of G.S. 15A-401(e)(1), because “copy” is defined in G.S. 15A-101.1(1) to mean “all identical versions of a document created or existing in paper form,” and the warrant in this case was not created, and does not exist, in paper form. So the question boils down to whether she has the warrant itself, and I think that she does. Although the term “original” is not used in G.S. 15A-401(e)(1), it is worth noting that under G.S. 15A-101.1(9)(b), an original includes “the electronic form of [a] document.” In other words, the electronic form of a document is the document, so Olivia has the document itself in her possession. Whether she needs to carry the computer with her to the door, whether she needs to present the warrant to the occupants of the home, etc., may be interesting and important questions but are not specific to electronic warrants or to NCAWARE and so are beyond the scope of this post. Those interested in further reading about entering a defendant’s residence to execute an arrest warrant may want to review the material starting on page 66 of the new edition of Bob Farb’s book, Arrest, Search, and Investigation in North Carolina.
Assume that Olivia properly enters Sam’s home, either under G.S. 15A-401(e)(1) or by consent. Does Olivia need a printed copy of the warrant in order to arrest Sam based on it?
No. Consistent with the discussion above, it seems to me that the warrant is in Olivia’s possession, allowing her to arrest Sam under G.S. 15A-401(a)(1) (“An officer having a warrant for arrest in his possession may arrest the person named . . . therein at any time.”). Even if that’s not the case, it is at a minimum true that Olivia knows that Sam is the subject of an outstanding warrant, which allows her to arrest Sam under G.S. 15A-401(a)(2) (“An officer who has knowledge that a warrant . . . has been issued . . . but who does not have the warrant in his possession, may arrest the person therein at any time.”).
Finally, assuming that Olivia may arrest Sam based on the warrant without having a printed copy of it, when must she provide Sam with a printed copy? Must she do so at the scene, or may she wait until she has taken Sam to the magistrate’s office?
The statutes aren’t very clear on this. Generally, they’re written on the assumption that an officer in possession of a warrant will be in possession of a paper copy that can be given to the defendant. See, e.g., G.S. 15A-301(c)(1) (“A law enforcement officer receiving a copy of a criminal process that was printed in paper form [from NCAWARE] . . . shall cause the date of receipt to be recorded . . . . Upon execution or service, a copy of the process must be delivered to the person arrested or served.”); G.S. 15A-301.1(g), (k) (providing that “[s]ervice of any criminal process in [NCAWARE] may be effected by delivering” a paper copy; and that “[t]he copy of the process shall be served not later than 24 hours after it has been printed”). It is probably fair to say that the sooner Olivia gives Sam a copy, the better. So, for example, if she has a mobile printer in her car, the safest course is to print a copy for Sam immediately. However, it is not clearly unlawful for Olivia to wait until she takes Sam to the magistrate’s office, which may be a significantly more convenient location for dealing with paperwork. And even if a court were to determine that waiting were unlawful, Sam is probably not entitled to dismissal or to any other remedy unless he can show that he was prejudiced in some way by the delayed service, which is not likely in a run-of-the-mill case. See State v. McKenna, 289 N.C. 668 (1976) (stating that while it is the “better practice” to serve arrest warrants promptly, the defendant was not prejudiced by the fact that he was never served with a copy of the warrant charging him with murder).
If one views this situation as one in which Olivia knows of, but does not possess, the warrant, then G.S. 15A-401(a)(2) applies; it provides that she must “serve the warrant upon [Sam] as soon as possible.” There’s no relevant case law interpreting this provision. If Olivia doesn’t have the ability to print the warrant, it seems clear that waiting until she takes Sam to the magistrate’s office – assuming that she does so promptly – is permitted. If she does have the ability to print the warrant, then the safest course for her is probably to print a copy of the warrant for Sam at the scene. Again, however, unless Sam is prejudiced by any delay in service, he is likely not entitled to any remedy even if Olivia does not serve him “as soon as possible.”
Finally, regardless of when service is made, Olivia should “[a]s promptly as is reasonable under the circumstances, inform [Sam] of the cause of the arrest.” G.S. 15A-401(c)(2)(c).
I’m grateful to several colleagues and to the legal staff at the AOC for their assistance with this post, but the blame for any mistakes rests with me. Readers, let me know if you disagree with the analysis above or if there are additional questions arising from officers’ field access to NCAWARE that I ought to be thinking about.
Going Back to the Well, er, Magistrate
I’ve been asked several times recently whether an officer who asks a magistrate to issue an arrest warrant and is turned down based on a lack of probable cause can simply go to another magistrate and ask the other magistrate to issue the warrant. The answer is yes.
There’s no double jeopardy problem because jeopardy hasn’t attached yet. In district court matters, it attaches when the first witness begins to testify, and in superior court matters, it attaches when the jury is empaneled and sworn. Nor is there any other principle of law that prevents the officer from “shopping” for a favorable magistrate. The situation is analogous to when a grand jury declines to issue an indictment in a matter — in such a circumstance, the state is free to resubmit the case to a later grand jury in the hopes of a different result. See generally 42 C.J.S. Indictments § 39 (“At common law, and in the absence of a governing statute, the prosecuting attorney may, without first obtaining leave of court, submit to one grand jury charges which a previous grand jury has ignored.”); In re Superior Court Order, 70 N.C. App. 63 (1984), rev’d in part on other grounds, 315 N.C. 378 (1986) (recognizing that “[t]here is apparently no [legal] prohibition against resubmitting the same information on a new bill of indictment,” though noting that such a procedure may be burdensome). Similarly, when one magistrate turns down a search warrant application for lack of probable cause, an officer generally may submit the same application to another magistrate. United States v. Pace, 898 F.2d 1218 (7th Cir. 1990) (holding that the government is not estopped “from seeking a second magistrate’s approval to search when another magistrate denies a search warrant”).
Of course, if a magistrate is aware that another magistrate has previously refused to issue a warrant in a particular matter, the magistrate should pay close attention to the officer’s showing of probable cause. But in the end, the magistrate must make a probable cause determination using his or her best independent judgment. The first magistrate may have erred, or the officer may have obtained additional evidence in the interim that justifies a different result.