Las Cruces Police Department GENERAL ORDERS FIELD OPERATIONS VOLUME 2 GO-231 PHYSICAL ARRESTS (MOST CRITICAL) Revised 6/4/2012
231 PHYSICAL ARRESTS
PURPOSE
This General Order provides commissioned employees with guidelines for making arrests.
POLICY Commissioned employees of the Las Cruces Police Department (LCPD) shall follow all lawful legal procedures required in arresting, booking, and filing charges against misdemeanor and felony suspects.
APPLICABILITY
This General Order applies to commissioned employees of the Las Cruces Police Department. This General Order supersedes all previous versions.
REFERENCES
• CALEA 1.2.5 • NMML ADM.02.04 • NMSA 1978 3-13-2, Police officers • NMSA 1978 31-1-6, Citation in lieu of arrest without warrant • General Order 230, Search of Prisoners • General Order 233, Prisoner Transport
DEFINITIONS
Arrest - To take or hold a person suspected criminal with legal authority.
Arrest Warrant – A written order issued by a judge, magistrate, or other proper authority that commands a law enforcement officer to place a person under arrest.
Child – A person who is less than eighteen (18) years of age.
Citizen Contact – Any activity involving communication between a citizen and a police officer.
Consensual Contact – An encounter between a police officer and a citizen that may be initiated by either party, but one where the citizen is free to leave at any time.
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Exigent Circumstances – Articulable conditions, facts, or circumstances that call for immediate aid or action.
Police Officer(s) – See NMSA 1978 Revised 3-13-2, Police officers.
Probable Cause -Facts and circumstances within the officer's knowledge sufficient enough to warrant a prudent person to believe a suspect committed, is committing or is about to commit a crime.
Reasonable Suspicion – Specific and articulable facts for suspecting a person of criminal activity; the degree of suspicion of criminal activity that justifies investigative detention but not an arrest.
231.01 VOLUNTARY CONTACTS
A. An officer may initiate a voluntary contact at any time, for any reason, and in any place, the officer has a right to be. A voluntary contact is not a seizure, stop or arrest, but rather a voluntary interaction between an officer and another person.
B. Persons contacted shall not be detained against their will or searched. An officer may not use force or coercion in initiating a voluntary contact or in attempting to obtain cooperation once the voluntary contact is made. Officers shall act in a restrained and courteous manner. Persons who do not respond to the officer’s greeting or approach must be allowed to continue on their way. Restraining the person in any manner converts the voluntary contact to an investigative detention, which can be made only upon reasonable suspicion.
231.02 INVESTIGATIVE DETENTION
A. Investigative detention is the temporary detention of a person based upon reasonable suspicion. (It is critical that the officer be able to fully articulate the facts and circumstances that substantiate their reasonable suspicion).
B. Officers shall not prolong investigative detention beyond the amount of time necessary to accomplish the purpose of the detention. Officers should be aware that many factors can influence a court to view detention as an arrest, such as but not limited to:
1. Unnecessarily prolonged detention; the longer a person remains detained, the more likely the detention may be judged as an arrest.
2. Current case law.
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3. Removing or moving an individual from the original contact location.
4. An unnecessary display of firearms.
5. The use of handcuffs, other restraints, or restrictions to freedom.
C. Officers who reasonably believe that a person under investigative detention may pose a threat to their safety or those around them shall conduct a “frisk” or “pat-down” of the detainee’s clothing for weapons.
D. If probable cause exists that the detainee has committed a criminal offense for which he/she could be immediately charged, the detainee may be placed under arrest.
231.03 AUTHORITY TO ARREST
A. Officers may arrest any person under the following conditions:
1. When an officer has knowledge of or holds a warrant commanding the arrest of, the named person.
2. When any arrestable offense has been or is being committed by a person in the officer’s presence.
3. When an officer is in a public place and has probable cause to believe that an offense was committed by an individual, and there exist certain exigent circumstances. The New Mexico Supreme Court recognizes four exigent circumstances allowing an officer to make a warrantless arrest of any individual in a public place:
a. An emergency situation requiring swift action to prevent imminent danger to life.
b. An emergency situation requiring swift action to prevent serious damage to property.
c. To forestall the imminent escape of a suspect.
d. To forestall the imminent destruction of evidence.
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231.04 ARREST WARRANTS
A. A warrant is a writ or precept issued by a Magistrate Judge, Municipal Judge, District Judge or other competent authority, addressed to a law enforcement officer, requiring them to arrest the person therein named, and bring them before the appropriate court to answer or be examined, touching some offense which they are charged with having committed.
B. Warrant Requirements:
1. Officers must be reasonably certain that the person to be arrested is, in fact, the person named in the warrant. Officers may detain a person to establish the validity of the warrant and the identity of the suspect. When in doubt, the officer should consult with a supervisor for assistance. Further investigation as to the identity of the suspect may include, but is not limited to:
a. Contacting the case agent if it is a local warrant.
b. Contacting the issuing agency.
c. Obtaining a fingerprint classification for the suspect if available.
d. Obtaining a photograph from the case file if available.
2. The warrant must include a description of the wanted person sufficient to identify the fugitive. The description should include name, sex, race, height, weight, hair color, and date of birth and/or social security number.
3. The warrant must include the issuing court and judge, jurisdiction and state, originating agency, charge, date of warrant, warrant number and bond.
4. If the warrant is not issued in the State of New Mexico, the warrant must indicate that the issuing jurisdiction will extradite upon arrest before the warrant can be served (See G.O. 221 Fugitive From Justice).
5. All warrants shall be confirmed by the source agency prior to service or arrest.
6. NCIC/NMCIC hits indicating that a person has a warrant for his/her arrest shall be confirmed with the originating agency. The confirmation includes ensuring that the warrant is still valid and that the originating agency will extradite the suspect. It is the arresting officer’s responsibility to verify the NCIC hit (See G.O. 221
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Fugitive From Justice). Subjects who are NCIC “Soundex” hits shall not be arrested without multiple points of identification which confirm the subject’s identity. If there are still lingering questions of identification the officer shall contact a supervisor. The arresting officer shall advise the NCIC operator when the suspect is in custody.
C. Execution of Arrest Warrants:
1. Searching private premises for a wanted person may be conducted only with consent to search by a person with authority to grant consent, or with a valid search warrant, except in situations concerning hot pursuit of the wanted person or exigent circumstances.
a. If officers are denied consent to search a structure and they have probable cause to believe a wanted person is inside (e.g., neighbors say they saw the wanted person inside the structure), the scene should be secured and a search warrant obtained before proceeding with the search for a wanted person.
b. An officer having personal knowledge that a wanted subject is currently within a structure owned or leased by the wanted subject (e.g., view of the wanted person in the wanted person's own residence) has sufficient grounds to search even though consent has not been given nor a search warrant obtained.
1) Personal knowledge applies only to the wanted person's structure; it does not apply to a structure belonging to another person.
2. Officers attempting to serve a warrant shall verify the information on the warrant prior to any attempt to serve the warrant.
231.05 ARRESTS WITHOUT A WARRANT
A. When an officer observes a violation of law committed by another person, or when probable cause and/or exigent circumstances exists to believe that a felony crime has been committed outside of the officer’s presence, the officer may make an arrest.
B. When an officer is legally inside a private place and observes a violation of law committed by another person, or when probable cause and/or exigent circumstances exists to believe that a felony crime has been committed outside of the officer’s presence, the officer may make an arrest. Examples of lawful presence in a private structure:
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1. Pursuant to a valid search warrant.
2. Pursuant to an arrest warrant for a different offense.
3. Pursuant to voluntary consent of a third party or co-party.
4. Pursuant to a routine investigation of a crime.
5. Pursuant to a citizen’s call for assistance.
C. Officers may use reasonable force to enter a private structure to make an arrest under the following circumstances:
1. With an arrest warrant and/or a search warrant, and officers receive no response to their knock and announce procedure after waiting a reasonable period of time unless a District Court Judge has granted permission to forego the knock and announce procedure. 2. Fresh pursuit, with or without an arrest or search warrant, when the officer has probable cause to believe a crime has been committed.
3. When exigent circumstances require immediate action by the responding officer in order to provide medical assistance or prevent injury.
4. When exigent circumstances require immediate action by the officer in order to stop the destruction of evidence.
5. Officers must be able to articulate all circumstances justifying forced entry in the offense incident report.
D. Whenever an officer has a reason to believe that any of the following conditions exist, he or she should obtain a high-risk search warrant from a District Court Judge prior to entering a private place where a person named on an arrest warrant can be found. Reasons that may justify a high-risk warrant include, but is not limited to:
1. A history of violent crime or behavior.
2. Intelligence regarding the presence of weapons.
3. The person to be arrested would escape.
4. There is imminent danger to other persons or officers.
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5. Evidence would be destroyed or removed.
6. There is imminent danger of damage to property.
E. Officers shall document all circumstances surrounding any use of force to enter a private place or make an arrest in an offense incident report and all other required administrative reports. If assisting an outside agency, officers will initiate an LCPD offense incident report.
231.06 JOHN AND JANE DOE WARRANTS
Valid warrants issued without an individual’s name, date of birth and other information, although rare, are known as John Doe or Jane Doe warrants. Officers will not arrest an individual on a John Doe or Jane Doe warrant unless there is probable cause to believe that the individual to be arrested is likely the person being sought in the warrant. Evidence used to establish probable cause in these cases may include a photograph or composite of an unknown person, witness or victim identification, height, weight, hair color, hair length, eye color, facial hair, race, sex, fingerprints, DNA (found during an investigation, but not found on any database), tattoos and other available information.
231.07 MISDEMEANOR ARRESTS
A. Officers shall adhere to the following guidelines when making arrests for misdemeanor charges:
1. The offense was committed in the officer’s presence.
2. The offense was not committed in the officer's presence and has been identified as an arrestable offense without a warrant, releasing the officer from criminal and civil liability as long as the officer acts in good faith. Examples of such offenses are:
a. Domestic Violence.
b. Shoplifting.
c. Falsely Obtaining Services.
d. Affray at a Liquor Establishment.
e. Violation of a Protection Order.
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3. A valid misdemeanor arrest warrant exists.
4. Officers shall document all arrests in an offense/incident report.
231.08 ARREST PROCEDURES
A. Unplanned Arrests
1. Arrests should be done in accordance with current law and department training, and as safely as possible for the officer, arrestee, and bystanders.
2. Officers shall request and wait for a backup officer prior to making an arrest if circumstances allow.
B. Planned Arrests
1. If possible, arrests shall be planned in advance with a supervisor or other experienced officers.
2. Arrests should be made at a time, location, and manner that will maximize the probability of a successful arrest and minimize the danger to officers, the arrestee, and bystanders.
C. When practical, the person being arrested should be advised of the reason for the arrest, including related criminal charges, prior to being detained or handcuffed. If for safety reasons, the officer feels it is not practical to do so at the time of the arrest, the arresting officer shall comply with this requirement once the person is safely restrained. Officers not in uniform shall display their badges and credentials prior to making an arrest to ensure proper identification.
D. All arrestees shall be fingerprinted and photographed as outlined in General Order 233, Prisoner Transport. If it is safer to keep the arrestee restrained to avoid a potentially violent confrontation, the officer shall notify the detention facility and request that the arrestee is fingerprinted and photographed prior to the arrestee’s release and document the safety concerns and notification to the detention facility in his/her report.
231.09 RESTRAINT OF ARRESTEES
A. For the safety of the arresting officer and the arrestee, all arrested persons shall be handcuffed behind the back, with the handcuffs double-locked and gauged for
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tightness, unless circumstances dictate otherwise as provided by department-approved training.
B. Other lawful forms of restraint may be used when necessary and reasonably available for the safety of officers, prisoners, and others.
C. Arrestees shall not be restrained in the four-point restraint (hog-tied).
D. Arrestees shall not be handcuffed to any part of a vehicle except in emergency situations.
E. An arrestee shall not be handcuffed to another person except in emergency situations where no other restraints are available or when other officers are unavailable for security and transport.
F. Should an arrestee be physically disabled or physically proportioned as to not allow the use of handcuffs behind the back, the arresting officer shall rely on approved department training to evaluate the necessity and manner in which to use restraint devices. Examples of alternate restraint techniques are, but not limited to:
1. Using two sets of handcuffs.
2. Using purpose-built oversized handcuffs, if available.
3. Using a transport belt.
231.10 POST ARREST
A. Following an arrest, officers are responsible for the safety of the arrestee, any victims, and any bystanders present. Therefore, officers shall take all steps reasonably necessary to protect victims and bystanders from the arrestee and the arrestee from victims and bystanders.
B. Officers shall not allow the arrestee out of their immediate presence until the arrestee is properly secured and transported to a detention facility.
C. After arresting a person and placing them in restraints, the arresting officer shall:
1. Inform the arrestee of all charges and/or reason for custody.
2. Conduct a search incident to arrest (See G.O. 230 Search of Prisoners).
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3. Search the transporting vehicle for any contraband or weapons before and after each prisoner transport. If another officer or transport officer transports the arrestee, ensure that the transporting vehicle has been searched by the officer or transport officer responsible for the transporting vehicle.
D. All prisoners shall be booked in the LCPD booking area by the arresting officer or assisting officer, and all booking procedures shall be completed prior to transport to the Dona Ana County Detention Center (DACDC). Booking procedures include:
1. Documenting the arrestee’s name, charges, and assigning an arrest number.
2. Completing prisoner property inventory.
3. Completing all arrest reports as applicable and forwarding to the Court and/or Records Unit as required. The Records Unit shall add the information to the arrestee’s criminal history file.
4. Fingerprinting and/or palm printing all arrestees.
5. Photographing all arrestees.
E. Officers are also responsible for the health and safety of the arrestee while in the officer’s custody by:
1. Monitoring arrestees for health emergencies.
2. Ensuring that all arrestees receive medical aid if needed or requested by the arrestee. Medical aid may be rendered by the Las Cruces Fire Department (LCFD), an on-duty paramedic or EMT, or by transporting the arrestee to a hospital to be seen by a licensed physician.
F. Following an arrest, any person accused of a crime is entitled to a reasonable opportunity to make three telephone calls beginning no later than twenty (20) minutes after the time of arrival at the police station or another place of detention.
231.11 SEARCH INCIDENT TO ARREST
A. At the beginning of each tour of duty and after transportation of an arrestee, officers shall search the police unit for contraband and evidence.
B. After making an arrest, officers shall conduct a thorough search of arrestees.
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1. Any criminal evidence discovered during the search of the arrestee’s person shall be seized and preserved in accordance with LCPD General Orders, Volume 3, Evidence and Property.
2. When practical, searches incident to arrest should be conducted by an officer of the same sex as that of the arrestee being searched.
3. Officers should attempt to minimize the amount of personal property retained by an arrestee. Personal property retained by an arrestee shall be inventoried and documented on a LCPD Evidence Form and transported to the detention facility with the arrestee. Arrestee property items that the detention facility will not accept shall be entered into LCPD evidence for safekeeping and the arrestee informed as to how to recover his or her property.
4. Strip searches are prohibited unless an officer has a search warrant from a court- authorized to issue one in our jurisdiction. At all times, a supervisor shall be contacted prior to conducting any strip search. Strip searches shall be conducted at the jail facility.
5. Body cavity searches are prohibited unless:
a. Inspecting an arrestee’s mouth for interfering substances as part of a DWI investigation.
b. An officer has a search warrant from a court-authorized to issue one in our jurisdiction. At all times a supervisor shall be contacted prior to conducting a body cavity search. Any authorized body cavity search shall be conducted at a medical facility by a licensed physician, nurse, or other adequately licensed medical professional. An officer of the same sex as the person being searched shall be present to collect any recovered evidence.
231.12 SAFETY PRECAUTIONS
A. Officers shall approach every arrest situation with the knowledge that any arrest, regardless of the offense involved may present an element of danger. Therefore, officers making arrests shall take all reasonable precautions to ensure their own safety and the safety of others. These precautions include, but are not limited to:
1. Officers shall conduct protective sweeps of the premises or area where the arrest occurs to ensure no other persons or weapons are present that may present a danger
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to the officer(s) or the arrestee. The sweep must be in accordance with current law and department training.
2. Following an arrest, officers should not normally permit arrestees to leave the immediate area of the arrest for personal reasons. In exceptional cases where it is deemed necessary to allow an arrestee to leave the immediate area, the arrestee shall first be searched for weapons and then be accompanied and closely monitored by an officer at all times.
3. Officers shall monitor arrestees while secured in a transport vehicle to prevent escape or damage to the vehicle.
4. Prisoners shall remain handcuffed behind the back or in a transport belt during the duration of the booking process other than for fingerprinting.
5. Arrestees should be detained within a holding cell at all times by properly securing the arrestee to the bench in the holding cell. If an arrestee needs to be interviewed, an interview room shall be utilized that is as secure as possible with loose items removed. If an arrestee needs to use the toilet, the toilets in the holding areas shall be utilized. Arrestees shall be monitored by an officer of the same sex as the arrestee.
231.13 DUTY TO SAFEGUARD MINORS AND DEPENDENT CHILDREN
A. NMSA 1978 31-1-8, Identification of minor or dependent children upon arrest; required inquiry; guidelines - requires any officer who arrests a person shall, at the time of arrest, inquire whether the arrestee is a parent or guardian of minor or dependent children who may be at risk as a result of the arrest. Officers shall:
1. Note in the written report that the arrestee was asked about the safety and care of minor or dependent children.
2. Document the arrestee’s response within the report.
3. Make all reasonable efforts to ensure the safety of minor or dependent children at risk as a result of an arrest.
(It is important to remember that any persons the arrestee cares for may be endangered due to the detention of the arrestee and it is the responsibility of the arresting officer to inquire as to any such persons that may be in jeopardy of harm or negligence whether the person is a minor child or dependent adult.)
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231.14 RELEASES AFTER ARREST
A. No individual arrested shall be released from custody without posting the appropriate bond, unless authorized by a District, Magistrate, or Municipal Court Judge.
B. If it becomes apparent that the probable cause for the arrest no longer exists; the arrestee shall be released under the following conditions:
1. The officer is satisfied that there are insufficient grounds for making a criminal complaint against the person arrested; AND
2. The decision is made by a supervisor.
C. If the person is released, the officer shall ensure that the person is released at a safe location and is not otherwise placed at risk as a result of the incident. If necessary, the officer should provide transportation for the released person to a safe location.
D. The LCPD shall be responsible for any costs related to towing and impounding the person’s vehicle if a vehicle was also seized.
E. Any record of the arrest of a person released without charges shall include a record of release that classifies the incident as a “detention” rather than an arrest. The Records Section shall be notified in order to remove the arrest number and update any record of arrest by the arresting officer.
F. If a determination is made that an arrestee should be released on their own recognizance rather than be incarcerated at the county jail, then the arresting officer shall contact the on-duty supervisor. The supervisor shall:
1. Get authorization from the appropriate court to release the arrestee to their own recognizance by contacting the appropriate on-call judge.
2. Fill out the appropriate paperwork authorizing the release of the arrestee
3. Ensure that the arrestee or other representatives of the arrestee is aware of the release and the conditions of the release dictated by the court.
G. Officers shall ensure that the arrestee is released at a safe location preferably to the care of another adult person to whom the arrestee is related to attempt to ensure that no further criminal conduct will occur.
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H. Officers shall not prejudice based upon race, sex, ethnic origin, sexual preference or any other social, cultural or economic factor, position in the community, occupation or social standing in determining if an arrested person should be released or not.
231.15 CRIMINAL CITATIONS
A. Whenever possible, officers should use a criminal citation in lieu of an arrest. (See NMSA 1978 31-1-6, Citation in lieu of arrest without a warrant) Criminal citations should be issued to all persons charged with a misdemeanor unless there is a valid reason to make an arrest. Valid reasons include, but is not limited to:
1. A valid misdemeanor arrest warrant exists.
2. Any violation of statutes, ordinances or case law which mandate an arrest.
3. The officer believes that failure to take the suspect into custody will result in further criminal action or endangerment to the public or suspect.
4. The officer has reason to believe the suspect is a flight risk.
5. The suspect resides outside Dona Ana County.
B. Once satisfied that an offender should be cited, the officer shall ensure that:
1. The person can be identified to the arresting officer’s satisfaction.
2. The arrested person is a resident of Dona Ana County, or the officer reasonably believes that the person will appear to answer charges against them.
3. The arrested person signs the citation thereby promising to appear in court at the promised time.
4. The officer knows no facts or circumstances indicating the arrested person should be booked.
5. The offender is an adult.
6. The offender is checked for outstanding local and NCIC warrants.
C. An offense incident report shall be prepared for any incident resulting in the issuance of any criminal citation.
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D. Criminal citations shall be forwarded to the appropriate locations prior to the officer going off duty.
E. All voided criminal citations must be marked VOID and include the reason, date, and officer's signature.
231.16 OFF-DUTY ARRESTS
A. In the case of a crime occurring in the presence of an off-duty officer, the officer may take necessary action to stop the crime under the guidelines of this General Order. Officers are encouraged to consider the potential risk to his/her safety, the safety of the public, and the nature of the crime being committed. At times, it may be more prudent to act as a keen observer and be a good witness to aid in the apprehension and prosecution of the offender.
B. If an officer chooses to make an off-duty arrest, he/she shall clearly identify him/herself as a police officer by presenting, at a minimum, his/her badge of office.
C. Once an officer takes action while off-duty, he/she must conduct him/herself within the guidelines of all General Orders of the LCPD.
D. Off-duty officers are permitted to make arrests within the officer’s legal jurisdiction when:
1. An arrest is required to prevent a serious crime or apprehend a violent or felony suspect.
2. The crime requires a full custodial arrest.
3. There aren’t any on-duty officers present or able to respond in a reasonable time.
E. Off-duty officers are NOT permitted to make off-duty arrests when:
1. The officer is personally involved in the underlying incident (Conflict of Interest).
2. The officer is engaged in off-duty employment and the arrest will only serve to benefit the private employer.
3. The officer is enforcing a non-serious infraction such as the violation of minor traffic regulation.
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F. As soon as practical, an off-duty officer who has made an arrest shall request an on- duty officer and on-duty supervisor. The off-duty officer shall turn over the handling of the event to the on-duty officer unless the continued involvement of the off-duty officer is required by the situation.
1. The off-duty officer shall prepare all appropriate reports as soon as possible.
G. The off-duty officer shall be compensated for time spent handling the arrest and report. The off-duty officer shall receive overtime, compensatory time, or an adjusted work schedule in accordance with provisions set forth in General Order 154, Compensation.
231.17 REPORTING OF ARRESTS
A. In all cases of physical arrest, the arresting officer shall complete all necessary court documents related to the arrest before turning the arrestee over to the detention facility. Additionally, the arresting officer must complete the initial offense incident report and any other paperwork and documentation to include safeguarding property, entering digital evidence, etc. prior to the end of the officer’s tour of duty.
B. All reports must completely describe the circumstances surrounding the arrest of the individual as well as any additional information required by this or any other General Order of the Las Cruces Police Department.
C. Arresting officers shall ensure that all documentation requested by the courts or the District Attorney in order to successfully process or prosecute an arrestee is forwarded in a timely manner.
231.18 DISCRETION
A. At the heart of the law enforcement profession is the power to arrest or detain individuals for violations of law. The police officer is given power and authority to arrest and detain individuals in order to maintain order within the community. Officers are to use their power of arrest in accordance with established law and good judgment, and a commitment to preserving the peace.
B. When making the determination to take enforcement action, officers shall consider what is required by law, what is in the best interests of the community and of the department. When exercising such discretion, officers shall not prejudice based upon race, sex, ethnic origin, sexual preference or any other social, cultural or economic factor, or position in the community. Officers shall remain objective and professional and shall not let emotions influence their action.
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