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? Continue reading
Tag Archives: service
May an Officer Stop a Car to Serve an Occupant with a Subpoena or Other Civil Process?
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.