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Does Law Enforcement Have to See a Crime being committed to make an arrest?

Sep 21

A local deputy and I recently had a conversation regarding the general public’s understanding (or lack thereof) of an officer’s authority to arrest a person for a non-felony offense.  Here is the common scenario – a call comes into central dispatch that trouble is going on at the City Park. The caller says that two women are fighting beside the merry-go-round and help is needed. Dispatch send out the city police, but by the time they get there, the fight is over. Both women (who are unrelated) are there, and there are several witnesses who tell the officer that they saw one woman attack the other. Can the officer arrest the attacker? No, he or she cannot. The alleged victim and witnesses leave in disbelief and disgust because the officer “didn’t do his job.”  

The alleged victim in the above case is requesting the officer to make what is called a “warrantless arrest.” Under Alabama Laws of Criminal procedure, however, a law enforcement officer may arrest a person without a warrant only if:

  1. The law enforcement officer has probable cause to believe that a felony has been committed, or is being committed, and that the person to be arrested committed it, or
  2. Any offense has been committed in the law enforcement officer’s presence or view, or
  3. The arrest is otherwise authorized by another law.

This law tells us, therefore, that an officer cannot arrest a suspect for a non-felony crime (a misdemeanor, for example) unless the law enforcement officer (1) physically sees the crime being committed, or (2) the arrest is authorized by another law in the Alabama Code.

Non-felony crimes that an officer can arrest on without a warrant regardless of whether the officer witnessed the crime include:

  1. Driving under the influence of alcohol or drugs, (Ala. Code §32-5A-191);
  2. Causing an accident while Driving under the influence of alcohol or drugs (Ala. Code §32-5-171);
  3. Misdemeanors committed in violation of a protection order (Ala. Code §15-10-3(a)(7));
  4. Misdemeanor Domestic Violence (Ala. Code §15-10-3(a)(8))  

Other than these exceptions, the alleged victim of a non-felony crime must proceed to the Circuit Clerk’s office (in Cherokee County, Dwayne Amos) and request that the Clerk issue a warrant on the alleged defendant. In other words, using the above example, the woman being attacked would have to go to the Clerk’s office and swear out a warrant on the attacker, probably for misdemeanor assault. The Clerk would then deliver the warrant to the proper law enforcement official.  A law enforcement officer be served on the alleged attacker. The alleged attacker would be brought to the jail and probably be given a bond amount immediately. A court date in misdemeanor court will then be set in misdemeanor court. The alleged victim would be represented by the State of Alabama through the district Attorney’s Office, and the alleged defendant would either have to represent himself, hire a lawyer, or ask the court to appoint him a lawyer.