COUNTY ATTORNEY OFFICIAL OPINION #95-12

DATED: July 10, 1997

ISSUES PRESENTED:

1. May officers make warrantless misdemeanor arrests, or issue notices to appear, for misdemeanors not occurring in their presence?

2. Must officers follow set bail schedules for warrantless misdemeanor arrests?

ANSWER:

1. The Sheriff and Sheriff’s Officers have made inquiries regarding notice to appear and warrantless arrest procedures. Hopefully, the following review will clarify issues to law enforcement and Justice Courts.

46-6-310 provides that a peace officer is authorized to issue a notice to appear anytime the officer would otherwise be authorized to make a warrantless arrest. It is the officer’s election, and if the officer chooses to issue a Notice to Appear, it is not an arrest, and no bail or appearance before the court is required. The Notice to Appear, which is contained in the officer’s uniform complaint and citation, directs a person to appear before the court at a certain time and place. As a Notice to Appear, the citation does not need to be sworn to. However, if the defendant fails to appear, a warrant my not be issued. If the citation was unsworn, then it is only a notice to appear, and does not constitute a complaint. For non-appearance by the defendant, the citation would then need to be sworn to, and then when sworn to, upon the non-appearance of the defendant, a warrant could be issued by the Justice Court for failure to appear on the complaint. See Commission Comments to 46-6-310, for this analysis and conclusion by the Uniform Code Commission.

46-6-311 forms the basis for peace officers to make an arrest without a warrant. A peace officer may arrest a person without a warrant if the officer has probable cause to believe that a person is committing an offense, or that the person has committed an offense, and existing circumstances require immediate arrest. Subparagraph 2 of 46-6-311 applies to domestic abuse cases, and probable cause to believe an offense is committed makes it an exigent circumstance, making arrest the preferred response.

Thus, as guidance to officers and the courts, officers may make warrantless arrests for misdemeanors when the offense either occurs intheir presence, or they have probable cause to believe that an offense has been committed, not necessarily in their presence, and is either currently going on, or has already occurred, and there is some factual circumstances that would indicate to the officer that it is appropriate or necessary for an immediate arrest. Otherwise, an arrest is not appropriate in a warrantless situation, not occurring in the officers presence, and a Notice to Appear can be issued under 46-6-310, at the officer’s discretion. If a Notice to Appear is given, it is not an arrest, and no bail is taken. The Attorney General has previously ruled that when peace officers have reasonable grounds to believe that an individual has violated motor vehicle laws, the peace officer may either immediately arrest the person, or issue a Notice to Appear. See 38 A.G. Opinion 49(1979).

Additionally, it is implied within the statutory structure, to obtain a misdemeanor warrant, officers do not have to have the county attorney prepare a complaint, particularly if the county attorney is not readily available, and may file an officer’s “Uniform Complaint” with the Justice Court, stating the offenses and facts in support, and request the Justice Court issue a warrant.

However, officers should be cautioned that although they can arrest upon probable cause for offenses that do not occur in their presence when circumstances exist that require an immediate arrest, this judgment call shall be subject to judicial interpretation and determination. If the officer chooses to arrest for a misdemeanor crime that did not occur in his presence, rather than issue a Notice to Appear, and subsequent evidence is uncovered as a result of that arrest, the officer risks a subsequent judicial determination that existing circumstances did not require the arrest, and the exclusionary rule would apply to evidence seized or obtained thereafter. See U.S. vs. Shepard, 21 Fed.2d. 933 (9th Circuit 1994).

Additionally, officers should be cautioned pursuant to 46-6-105, that a warrantless arrest should not be made of a person in his home or private dwelling place at night for misdemeanors. An exception to this rule is in 46-6-105, for the cases of domestic abuse. For domestic abuse, upon probable cause, arrests can be made at a person’s dwelling at night without a warrant. Otherwise, nighttime arrests at home should be with warrant. Officers also should be cautioned that pursuant to 46-6-312, that when arresting without a warrant, the officers should inform the defendant of the officer’s authority, particularly if he is not in uniform, of his intention to arrest the person, “You are under arrest”, and the cause of the arrest. This notice requirement is waived if the defendant is actively engaged in committing the crime, is being pursued, is in the process of being captured after an escape, or otherwise giving the notice will imperil the arrest.

2. 46-9-302 applies to the bail schedule. 46-9-302 applies when a defendant has been arrested, and does not apply when a defendant has been given a Notice to Appear. If the defendant has been given a Notice to Appear, no bail is taken, and the defendant is simply instructed to appear at the time specified. The bail schedule, as read in conjunction with 46-6-310, applies when there has been an actual physical arrest and the defendant must be detained and held for appearance before the court, unless the court has established and posted a set schedule bail for particular offenses. In that case, a peace officer may accept bail on behalf of the judge in accordance with the bail schedule, or in the case where a warrant has been issued, in the amount specified on the warrant. If an arrest has not been made, and a Notice to Appear is simply issued, then no bail is required, and the court’s bail schedule has no application. If a warrantless arrest does occur, then defendant must have a mandatory appearance before the Justice of the Peace before the defendant can be released on bail or otherwise, and that the acceptance of bail as set by the court, is discretionary upon the peace officer, with the officer having the discretion not to accept bail, as set by the bail schedule, and require the defendant to be detained until appearance in court within 48 hours of his arrest. However, pursuant to 46-9-302, if the court has set a bond schedule, and the officer elects to accept bail on behalf of the judge, the officer may not accept an amount of bail less than the amount set by the court in the pre-established bail schedule.

DATED this day of June, 1995.

Lee R. Kerr

ROSEBUD COUNTY ATTORNEY