[jo]

This is what happened---
Two Depuity Sheriffs and a local Police Officer have a Civil Arrest warrant and a Criminal Arrest warrant for "Johny Jones" We know Johny lives at 222 River St Deerfield We also know that he is at the residence.

Now the Criminal warrant lists his address as "streets of Deerfield". The Civil Warrant lists his address as "222 River St Deerfield". Johny is in the home but will not answer the door. Can you enter to make the arrest under Commonwealth V Silva.

This was a real case that happened 12/21/04. We say, yes you can enter to make the arrest on the Civil Warrant as it is an arrest warrant, signed by a judge.

Any input into this. Many times a person with a criminal warrant will also have a civil warrant.

Thanks Joe

 

[Gil]

Commonwealth V Silva

What year? Link to case?

 

[Clouseau]

We say, yes you can enter to make the arrest on the Civil Warrant as it is an arrest warrant, signed by a judge.

Correct, and you believed this was his address... and he was home.

 

[jo]

Gil, I got the case from your post on Criminal law Update posted Fri Dec 10th at 19:55.

Clouseau, Yes we had knowledge he was there, it was his address and there was mail in the mail box addressed to him. The only difference in the case law would be the entry was based on the address of the Civil warrant. Would the Civil warrant make a difference?

 

[Clouseau]

Would the Civil warrant make a difference?

No, as you stated, it was an actual arrest warrant signed by the judge.
This is the judges order to arrest.

 

[jo]

I think it was a good call, just wondering if anyone felt otherwise as the information was based on the civil warrant. Also he is in custody and will be spending the holidays at the Franklin County House.

 

[Gil]

Gil, I got the case from your post on Criminal law Update posted Fri Dec 10th at 19:55.

oh.... and here I was searching CPS

 

[jo]

Gil, Sorry man. I would have just posted a link but I have no idea on how to do that. I am not all that good with computers, slowly learning, very slowly.

 

[LenS]

As a Constable, this is what I know of civil process from MGLs and training at the "Constables' Office" in Chicopee.

MGLs (C. 41 S.98 ) prohibit POs from serving and executing Civil Process. My guess on this is that a Civil Capias can't be served by a PO (that it would be "executing" a Civil Process). Sheriffs/Constables can serve the Civil Arrest Warrant (Constables can also execute the Criminal Arrest Warrant, MGL C. 41 S. 94). We were taught that we can NOT "disturb the peace" by breaking in to arrest someone on a Civil Arrest Warrant.

In fact, a few months ago another Constable and myself attempted to arrest a deadbeat dad on a Civil Arrest Warrant in a neighboring town. As always good policy we paid a prior visit to the PD and the command officer requested permission to send a PO with us. They knew this person to be a prior problem (violent). So the three of us went out to make the arrest at ~0700. We knew he was home, but he never came to the door and we had to just leave and try again another day. Did this twice (he called us and volunteered to meet us the 2nd day), he again refused to open the door.

Now, since there was also a Criminal Arrest Warrant in the case you refer to, the PO can definitely break in with that warrant and arrest him. The PD can use any sources that they find available to them in order to get the info needed to execute their Criminal Arrest Warrant! After they get thru with him, the Deputy Sheriffs can request that he be handed over to them to arrest him again under the Civil Arrest Warrant.

 

[jo]

In this case the sheriffs office had the civil warrant and located a wms warrant. We notified the Deerfield PD who assisted us. We made the arrest on both warrants and booked him in at Deerfield PD. Then transported him to court lock-up. My question was geared towards the case law and wondered if anyone felt that it did not apply to a civil arrest warrant. I feel it does apply It reads as follows.

Commonwealth v. Silva

Background: The defendant filed a motion to suppress heroin seized by the police after arresting him under an arrest warrant . He argued that the police lacked the authority to execute the arrest warrant in his appartment.

ISSUE: What standard must police meet under article 14 of the Massachusetts Declaration of Rights to justify entry into a suspect's residence pursuant to a valid arrest warrant-probable cause or a reasonable belief?

LAW: An arrest warrant encompasses the power to enter a (suspects) residence for the purpose of executing the warrant. A seperate search warrant is not required. The Supreme Court of the United States has held that for the purpose of the Fourth Amendment an arrest warrant founded on probable cause implicity carries with it the limited authority to enter a dwelling in which the suspect lives where there is reason to believe the suspect is within.

Article 14 like the Fourth Amendment, requires that the police, with a valid arrest warrant, have (1) a reasonable belief that the location to be searched is the arrestee's residence, and (2) a reasonable belief that the arrestee is in his residence at the time the arrest warrant is executed.

Now, we met all requirments of the law, and I see in here that there is nothing that defines a warrant from criminal or civil. A civil warrant is still a warrant for the arrest of a person and is signed by a judge.

 

[Clouseau]

Lens, and Jo...as you stated in your case, you were with sheriffs. The police would not serve the civil side of it alone.

I have been on a few of these. Always with the sheriffs.

A few years back, the sheriffs used to call us at 4:30am.{to early}. We would go with them and they would make the arrest. Some with forced entry.

A police officer {alone} would not arrest on a civil warrant...never mind entering a dwelling.

I have been to many disturbances involving violations of a "civil" restraing order, and would not...could not arrest.

For the police alone...the way around it is to get the judge pissed off because the individual is ignoring the civil process/summons etc....and he {judge}will issue a criminal warrant for contempt. Then it's your game.

 

[jo]

Clouseau, I work for the Sheriffs Office. I serve criminal warrants/wms assisting probation and parole. That day I was assisting our civil process division. If I assisted them in the future and there was NO criminal warrant would I be able to make entry on a civil warrant if all requirments of Commonwealth v. Silva were meet? I feel that I could, however I am looking for other opinions as not to get myself jamed up in the future.

 

[Clouseau]

Gotcha...yes, that's something you want to be sure on.

I'm trying to pm you with the info about the guy you can ask. It's not working.

Gil, tried to pm you as well. "System gone crazy" It posted my reply 3-4 times.

 

[jo]

Great, looking for as much input as possible. I have never worked for civil process, but I assist them frequently.

 

[frapmpd24]

If you have a "reasonable belief" the subject is in his/her place of residence and there is a WMS criminal warrant you can make entry. Facts such as the car registered to him/her in the driveway, observing lights on, seeing people inside that match the description, having dispatch call and ask for the person saying they are telemarketer, electric company, etc (a ruse of sorts) go toward your belief they are there.

As far as a civil warrant being served in the process, I don't see an issue with both being done at the same time. Infact, I would say that the civil warrant with more specific information about the residence helps your PC for when you knock the door off the hindges...

If an police officer was assisting with the serving of a civil warrant as back-up for safety reasons, absent a criminal warrant, I am not familiar if there is case law on whether entry can be made, but I would say no, but that is just my opinion.

 

[michaelbos]

Question Folks, Is it set by regulations of the WMS system, if you run him/her and they have a warrant, you must or shall arrest? based on the WMS system?

Thank you

 

[Mikey682]

MichaelBos....I do not believe there is policy coming from WMS. As far as I have been taught, WMS is only a database for informing law enforcement. I have "heard" of situations where a WMS hit was not arrested, depending where you work and who they are.

Check the Worcester District Attorney's office website at www.worcesterda.com for the November legal update where an entrance into a persons home was challenged. The arrest was legit, as it was known that the house was that person's home. There was no search warrant neccessary for entrance into the dwelling.

 

[frapmpd24]

Back to the basics on this one here. Just remember what is needed to enter into a dwelling/home/apartent.

1) Warrant

Subject in their place of residence - Need a reasonable belief they are there and an arrest warrant to enterand there is a

Subject in someone elses home - Need reasonable belief the wanted subject is there, a search warrant to enter the persons property so as not to violate the homeowners 4th Ammd. Rights and an arrest warrant for the wanted subject. If you entered w/o a search warrant, consent, or exigency the warrant arrest would still be valid, but you would have violated the homeowner rights to reasonable search and seizure.

2) Consent

A) Ask if you can come in. If the wanted person can let you in, the wife/family can allow you in (not too young though), or if in another persons home the homeowner can allow entry

B) A Ruse. "Hi I am the gas inspector, I need to check your pilot light", trickery like that, but obviously that requires some planning and a different uniform.

3) Exigent Circumstances

Are there emergency circumstances that would allow you to make entry? Probably the least of the three ways to get in to lock someone up on a warrant though. And the exigency cannot be created by the police.

Hope that helps...

 

[Clouseau]

Jo, you are all set.

I confirmed that it is the same procedure for civil warrants as criminal warrants.

Same rules apply....knock & announce etc.

 

[jo]

Clouseau, thanks that is what I was looking for. So to confirm, If I assist our civil process division and they only have a civil warrant entry can be made to effect an arrest as long as all of the elements have been met based on the silva case? If you don't mind, where did you get your info. If you don't want to post it PM me. Thanks Joe