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202 Arrest Procedures (Issued 05-15-2008)FRIDLEY POLICE DATE OF ISSUE NUMBER: GENERAL ORDER May 15, 2008 202 SUBJECT: REVISION DATE SECTION: Arrest Procedures May 15, 2008 Orange I. PURPOSE To specify legal procedures to be followed for an arrest. II. POLICY The power to arrest an individual is one of the most important duties of a police officer. It is imperative that this responsibility be accomplished within the limits of authority as set forth by the Constitution, State Law, Rules of Criminal Procedure and applicable court decisions. It is the policy of this department that all officers shall abide by all applicable laws of arrest when exercising the power of arrest. III. PROCEDURE A. Authority to Arrest and Requirements The Fourth Amendment of the Bill of Rights recognizes “the right of the people to be secure in their persons, houses, papers, and effects against unreasonable search and seizure.” The Fourth Amendment was intended to protect against arbitrary arrests as well as against unreasonable searches. Compliance with the Fourth Amendment is satisfied if an arrest is made in a public place on probable cause, regardless of whether a warrant has been obtained. The test of probable cause to arrest is whether the objective facts are such that under the circumstances, a person of ordinary care and prudence would entertain an honest and strong suspicion that a crime has been committed. This is the common standard used by Minnesota courts. There must be particular and articulable facts that lead an officer to believe that a crime was committed and the person to be arrested did it. Minnesota State Statute 629.30 defines an arrest as “taking a person into custody that the person may be held to answer for a public offense.” The statute authorizes that an arrest may be made by a peace officer either under a warrant or without warrant. B. The Arrest Decision 1. When an offense occurs for which an arrest can be made, officers may, after considering the total situation, take all reasonable and necessary steps to effect the arrest of the offender(s). 2. When the arrest of an offender might cause a greater potential for harm to the general public than the harm that would be caused if the offender was not arrested; or, when an alternative to arrest would better serve the interest of the public and the offender, the decision not to arrest, even when there are grounds for an arrest, may be appropriate. If an officer has any doubts as to whether or not those circumstances exist, the officer should consult a supervisor. C. Arrest Generally 1. Prior to affecting an arrest, the arresting officer shall, whenever practicable, give notice of their authority and inform the person to be arrested that the officer intends to arrest them. 2. The arresting officer shall inform the arrested person of the reason for the arrest, either before or as soon as practical after the person is taken into custody. 3. Only the amount of force necessary to affect the arrest and ensure the safety of the arrested person, the officer, and other persons shall be permitted, consistent with law and the department policy on use of force. 4. An officer may not subject the person arrested to any more restraint than is necessary for the arrest and detention. Under normal circumstances, all persons placed under arrest shall be handcuffed, at a minimum, to assure safe custody and the safety of the officer. 5. When a lawful arrest is affected, with or without an arrest warrant, an officer shall reasonably search the arrested person and the area within such person's immediate presence, or under their immediate control, immediately after the arrested person is restrained for the authorized purpose of: a. Protecting the officer from attack; b. Preventing the person from escaping; c. Discovering and seizing fruits of the crime; or d. Discovering and seizing any instruments, articles, or things which may have been used in the commission of the offense; or e. Discovering any instruments, articles, or things that may constitute evidence of the offense (including contraband). 6. The phrase "immediate presence" is defined as that area within the arrested person's immediate control, i.e., that area from which the arrested person might gain possession of or seize a weapon or other thing to assault the officer or affect an escape or seize concealable or destructible evidence. 7. The arresting officer is responsible for the safety and protection of the arrested person during the time the arrested person is under the control of the arresting officer. 8. The arresting officer is responsible for the security of personal property in the possession or under the control the arrested person at the time of the arrest until such property is turned over to another authorized person or agency. 9. The arresting officer is responsible for ensuring all constitutionally guaranteed rights of the arrested person are preserved during the time the arrested person is under the control of the arresting officer. D. Warrant Arrest 1. An officer may arrest any person based upon the issuance of a valid arrest warrant. An arrest under a warrant is lawful even though the officer does not have the warrant in hand at the time of arrest. 2. The arresting officer is responsible for confirming the existence of a valid warrant before making an arrest based on a warrant. 3. The arresting officer is responsible for confirming that the person to be arrested is the same person for whom the warrant was issued. 4. The arresting officer shall inform the arrested person that the officer is acting under a warrant. 5. An arrest for a felony or gross misdemeanor warrant may be made on any day and at any time of the day or night. An arrest for a misdemeanor warrant may not be made on Sunday or between 10:00 p.m. and 8:00 a.m. on any other day except when the judge orders in the warrant that the arrest may be made between those hours (thereafter referred to as a night-capped warrant) or when the person named in the warrant is found on a public highway or street. 6. After giving notice of the authority and purpose of entry, an officer may break open a door or window of the residence of the person named in an arrest warrant to gain entry and execute the arrest warrant if the officer is refused admittance and the person named is believed to be inside. 7. Absent consent or exigent circumstances, an officer may not enter the private residence of third party to search for the person named in an arrest warrant without first obtaining a search warrant; except that if the person named is a co-resident or overnight guest at the third party residence, then an officer may enter the residence in order to execute the arrest warrant if the person named is believed to be inside. 8. An officer may not arrest a person for a misdemeanor or gross misdemeanor offense committed in another state except under authority of a Rendition Warrant issued by the Governor of Minnesota pursuant to Minnesota Statutes § 629.07. E. Warrantless Arrest 1. An officer is authorized to make an arrest without a warrant under the following circumstances: a. When the officer has probable cause to believe that a felony offense has been committed and that the person to be arrested committed the offense; or, b. When a public offense has been committed or attempted in the officer’s presence. 2. As a general rule, an officer may not arrest for a misdemeanor or gross misdemeanor offense without a warrant unless the offense was committed in the officer’s presence; except that an officer may arrest a person on probable cause without a warrant for certain misdemeanor or gross misdemeanor offenses, even though not committed in the officer’s presence, as specified by state law. A list of specified offenses may be found in the Minnesota Criminal Elements Handbook. 3. Per state law, an officer must arrest, without a warrant and take into custody, a person violating an Order For Protection (OFP) or Harassment Restraining Order (HRO) even if the violation did not take place in the presence of the officer, if: a. The officer has probable cause to believe the person has violated the order; and, b. The existence of the order can be verified by the officer. 4. An officer may take into custody any suspect that has been lawfully placed under arrest by a citizen that witnessed the misdemeanor or gross misdemeanor offense. 5. An on-duty officer may make a warrantless arrest outside the City of Fridley if: a. The officer is in fresh pursuit of a crime committed within the City; or b. The officer is acting in the course and scope of employment and observes a public offense occur. 6. An off-duty officer of the department while within the City of Fridley may make a warrantless arrest under the conditions set forth in this section. 7. An off-duty officer of the department while outside the City of Fridley but within the State of Minnesota may only make a warrantless arrest when confronted with circumstances that would permit the use of deadly force under Minnesota State Statute 609.066. Nothing herein limits an officer’s authority to arrest as a private person. 8. An off-duty officer on administrative leave or suspension is not authorized to make a warrantless arrest under color of law. F. Custodial Warrantless Arrest for a Misdemeanor Offense 1. An officer may make a custodial arrest without a warrant for a misdemeanor offense as specified by state law. A list of specified offenses may be found in the Minnesota Criminal Elements Handbook. 2. If an officer decides to proceed with prosecution of any other misdemeanor offense for which a person may be subject to lawful arrest; then the officer SHALL ISSUE A CITATION in lieu of arrest, pursuant to Rule 6.01 of the Minnesota Rules of Criminal Procedure, unless it reasonably appears to the officer that the arrest or detention is necessary to: a. Prevent bodily harm to the accused or another; or b. Prevent further criminal conduct; or c. There is a substantial likelihood that the accused will fail to respond to a citation. 3. An officer should keep in mind the following considerations when deciding if a custodial arrest for a non-listed misdemeanor offense is appropriate: a. The arrest is necessary to prevent bodily harm to the accused or another: 1) The nature of the offense (e.g.: assault, order for protection violation, driving while intoxicated) justifies an arrest. 2) The suspect has assumed hostile and threatening behavior. b. The arrest is necessary to prevent further criminal conduct as demonstrated by the person’s criminal history: 1) The suspect is a habitual offender. 2) The suspect has a history of assaultive behavior. 3) The suspect has numerous misdemeanor driving offenses that indicate a pattern of continuing criminal conduct. c. The arrest is necessary because it is unlikely that the suspect will respond to the citation: 1) Review the suspect’s driving record: i. The address on the suspect’s driving record is not current. ii. The suspect’s driving record shows returned orders by the Commissioner of Public Safety, indicating that they have not kept their address current in the past. iii. The suspect been suspended for failure to appear or pay fines. 2) The suspect has not been sufficiently identified: i. The suspect does not have photo identification and there is insufficient corresponding identification data found in Driver and Vehicle Services records or from a previous arrest and booking. ii. The suspect does not match the physical description of the identification provided. iii. The suspect has no identification. Keep in mind, that the mere inability of a minor traffic violator to produce a driver’s license IS NOT a reasonable basis for an arrest (or search). 3) The criminal history shows that the suspect has been convicted previously for failing to appear. 4) There is information that the suspect has failed to respond to citations in the past. Remember to check criminal history and Anoka County Central Records for prior contacts such as warrant arrests. d. If an officer making an arrest is not able to articulate facts which would justify a misdemeanor arrest, the court will consider the arrest unlawful, and any evidence found in a search incident to the unlawful arrest will be suppressed. The arresting officer’s report should mention those factor(s) that made the arrest fall within one of the three exceptions allowed by Rule 6.01. G. Warrantless Arrests and Detention of Adults 1. The 36-hour rule controls how long a person arrested without a warrant may be held in custody before they must be brought before a judge. The time begins at midnight at the end of the day of arrest and does not include the day of arrest, Sundays, or legal holidays. 2. The 48-hour rule controls how long a person arrested without a warrant may be held in custody before a complaint is signed by a judge or a judicial determination has been made that probable cause exists for continued detention. The time begins as soon as the suspect is arrested and runs continuously for the next 48 hours. There are no exclusions as in the 36-hour rule. 3. As a general rule, a custodial arrest of an adult requiring continued detention that is made between 12:00 p.m. (noon) on Friday (or the last business day of the work week if Friday is a holiday) and 12:00 p.m. (noon) on Saturday (if the next available court hearing is the following Monday); or 12:00 p.m. (noon) on Sunday (if the next available court hearing is the following Tuesday – the following Monday being a holiday, for example) will require that the arresting officer complete an Affidavit and Application for Judicial Determination of Probable Cause form. 4. In cases to be prosecuted by the Anoka County Attorney’s Office (generally those involving felony level offenses), the arresting officer will contact the on-call Assistant Anoka County Attorney to review the affidavit. For arrests made overnight, if delay does not unreasonably jeopardize the continued detention of the arrested person, contact with the on-call attorney may occur the following morning with approval of the supervisor. 5. In cases to be prosecuted by the City Prosecutor’s Office (generally those involving gross misdemeanor and misdemeanor offenses), the arresting officer will submit a completed affidavit to the Information Services Unit (ISU) for scheduled review by the on-call City Prosecutor. If no ISU staff will be on-duty, the day-shift supervisor will be responsible for ensuring that the affidavit is reviewed by the on-call City Prosecutor. H. Detention of Arrested Persons Requiring Medical Attention 1. A person arrested for an offense that requires continued detention, that exhibits illness or injuries requiring medical attention, will be transported to a hospital by either the arresting officer, designated transport officer, or an ambulance service for treatment. 2. An ill or injured prisoner transported to a hospital by ambulance will be accompanied by an officer unless police exigencies dictate otherwise. In such case, an officer will respond to the admitting hospital to maintain custody of the prisoner as soon as practicality allows. 3. The arresting officer or designated transport officer is responsible for the custody of the ill or injured prisoner while they receive medical attention. Hospital personnel or hospital security will not guard a prisoner. 4. If the ill or injured prisoner needs to be admitted to a hospital for a longer term treatment than is reasonable for an officer to maintain watch; or, if the ill or injured prisoner is in such critical condition as to make continued watch by an officer pointless, the officer maintaining custody shall notify a supervisor, if one is available, and a determination will be made as to the need for continued custody and/or the necessity of transferring custody to personnel of an appropriate agency. I. Detention of Arrested Juveniles 1. The laws and rights applying to adults also apply to juveniles, and generally the arrest polices for juveniles are similar to those for adults. Due to the vulnerabilities of juveniles and the role of the parent or guardian in the juvenile court system, there are specific policies that dictate how juveniles are handled as outlined in the department policy on juvenile procedures. 2. Continued detention of a juvenile arrested without a warrant must meet one of the following four criteria: a. Will endanger self or others; or, b. Will not appear for court; or, c. Will not remain in control of the person whose lawful custody the youth is released to; or, d. Their health and welfare would be immediately endangered. 3. As a general rule, continued detention of a juvenile arrested without a warrant will require that the arresting officer complete an Affidavit and Application for Judicial Determination of Probable Cause form based upon a schedule maintained by Juvenile Center staff. 4. The arresting officer will contact the Juvenile Center regarding appropriate placement for any juvenile arrested without a warrant for which continued detention is required. Juveniles arrested under a warrant or want will be placed where the want or warrant dictates. 5. Pursuant to Juvenile Center Policy Statement PS-268 “Out of Control Youth at Intake/Detoxification,” Juvenile Center staff WILL accept a juvenile that is under the influence of alcohol, provided that the BAC of the juvenile is .08 or less and there is no immediate need for medical attention. Juvenile Center staff may request that a PBT be administered at intake to verify the BAC of the juvenile. 6. Juvenile Center staff WILL NOT accept a juvenile who is intoxicated (BAC .08 or above) or is under the influence of a mood altering drug unless the juvenile has been evaluated by a medical doctor and a certification has been received that the juvenile is not in immediate medical danger or in need of a detoxification facility. In such case, a juvenile arrested for an offense in which continued detention is required will be transported to a hospital by either the arresting officer, designated transport officer, or an ambulance service (if required) for evaluation. 7. The arresting officer or designated transport officer will complete an Intake Detention Form on an arrested and detained juvenile as required by the Juvenile Center. J. Arrest and/or Detention of Foreign Nationals 1. It is the obligation of the United States, including local municipalities, to notify foreign authorities when foreign nationals are arrested or otherwise detained. 2. Steps to follow when a foreign national is arrested or detained: a. Determine the foreign national’s country. In the absence of other information, assume this is the country on whose passport or other travel documents the foreign national travels. b. If the foreign national’s country IS NOT on the mandatory notification list: 1) Offer, without delay, to notify the foreign national’s consular officials of the arrest/detention. 2) If the foreign national asks that consular notification be given, notify the nearest consular officials of the foreign national’s country without delay. Phone or fax numbers for foreign embassies and consulates in the United States may be obtained from Central Communications or the web site of the US Department of State. A suggested fax sheet for making a required notification is included on the web site. c. If the foreign national’s country IS on the list of mandatory notification countries: 1) Notify that countries nearest consular officials, without delay, of the arrest/detention. Phone or fax numbers for foreign embassies and consulates in the United States may be obtained from Central Communications or the web site of the US Department of State. A suggested fax sheet for making a required notification is included on the web site. 2) Mandatory notification countries: Algeria Antigua and Barbuda Armenia Azerbaijan Bahamas Barbados Belarus Belize Brunei Bulgaria China Cost Rica Cyprus Czech Republic Dominica Fiji Gambria Georgia Ghana Grenada Guyana Hong Kong Hungary Jamaica Kazakhstan Kiribati Kuwait Kyrgyzstan Malaysia Malta Mauritius Moldova Mongolia Nigeria Philippines Poland (non-perm. residents) Romania Russian Federation St. Kitts/Nevis St. Lucia St. Vincent/Grenadines Seychelles Sierra Leone Singapore Slovakia Tajikistan Tanzania Tonga Trinidad/Tobago Tunisia Turkmenistan Tuvalu Ukraine United Kingdom Uzbekistan Zambia Zimbabwe 3. The arresting officer should document all notifications and actions regarding a foreign national in a report. K. Persons Exempt from Arrest 1. Some persons may not be detained at the time an arrest is justified. This does not mean that the person will not have to answer for a crime. Stops for routine traffic infractions and their resultant citations are not arrests or detentions for the purposes of this section. a. Diplomatic agents, family members recognized as part of the household, and members of their administrative and technical staff and their households are immune from arrest, detention, and search. Members of the service staff have no privileges or immunities. Family members of diplomatic agents who are also U.S. citizens have no privileges or immunities. Consular officials their families and their staffs have no privileges or immunities except that career consular officers are immune from arrest unless the arrest is pursuant to a felony warrant. 1) The only authoritative document that can reliably identify a diplomatic or consular official is the identity card issued by the U.S. Department of State, Protocol Office. 2) Other documents such as foreign diplomatic passports, U.S. diplomatic visas, tax exemption cards, or vehicle registration issued by the State Department do not conclusively indicate the diplomatic status of an individual. Officers presented with this type of identification should assume that the suspect may have some degree of immunity and attempt to further verify the diplomatic status of the suspect. b. Members of the U.S. Congress, while in attendance at the session of their respective houses, or while traveling to or from the session, are exempt from arrest in all cases except treason, felony, or breach of the peace. c. State senators and representatives, during the session of their respective houses, and in going to or returning from the same, are privileged from arrest in all cases except treason, felony, or breach of the peace. d. Members of the National Guard after having been ordered to any duty or while going to, attending or returning from any place, to which the member is required to go for military duty, are exempt from arrest in all cases except felony or breach of the peace. 2. The person claiming immunity from arrest has the burden of proof to establish identity entitling immunity. 3. The privilege of personal inviolability (freedom from arrest, detention, and search) must be balanced with the responsibility of the police department to protect the safety of the citizens. Officers may intervene to the extent necessary to halt activity that poses imminent danger to the safety of the public or when it is apparent that a serious crime may otherwise be committed. L. Citizen’s Arrest 1. Citizen arrests for misdemeanor crimes can only be made when the offense was committed in the presence of the complainant. 2. Citizens making arrests must complete a Certificate and Declaration of Citizen’s Arrest form identifying the basic statutory elements of the observed offense. 3. An officer shall review the circumstances surrounding the arrest. The arrested person should be taken into custody only after the officer has determined that probable cause exists. 4. If probable cause exists and the arrested person is taken into custody, the arrest shall be processed as would any other arrest pursuant to this policy. 5. If the officer believes that the arrest was unlawful or that the statutory elements of the offense have not been met, the officer may refer the complainant to the City Prosecutor’s Office. M. Probable Cause Pick-up for a Felony Offense 1. As long as there continues to be probable cause that a felony offense was committed and the person to be arrested committed the offense, that person can be arrested without a warrant.