Mandatory Arrest Constitutional? – Alaska

Also See (click)

It is difficult to accept how a person could be stripped of his right to be free by warrantless seizure, arrest, simply by letting, or even inviting, a police officer inside his home. This analysis shows just how far the law has been twisted to the point that it in no way represents gender equality under the Rule of Law and Constitution.

Actually, after all this time since his arrest, Westley didn’t know that Alaska is a “Mandatory Arrest State” until I pointed out the relevant section of Alaska Statute. I present the relevant law, with the sources of where it comes from, plus some other useful sources. I believe it is self-explanatory. I want this section as brief as possible, but include some commentary.

Alaska Law Review
Paul A. Clark, Mandatory Arrest for Misdemeanor Domestic Violence: Is Alaska’s Arrest Statute Constitutional? 27 Alaska Law Review 151-194 (2010) Available at: http://scholarship.law.duke.edu/alr/vol27/iss2/1

Abstract:
Mandatory Arrest for Misdemeanor Domestic Violence: Is Alaska’s Arrest Statute Constitutional?

Alaska defines “domestic violence” in a way that is broader than most of the country. Additionally, it requires arrest for a wide variety of offences classified as domestic violence, including many misdemeanors. This regime violates both the United States and Alaska Constitutions in a number of ways. The statute imposes a penalty prior to a determination of guilt beyond a reasonable doubt, violating due process. It violates equal protection interests by treating individuals who commit similar crimes differently based on whether or not their crimes are classified as “domestic.” Finally, it violates Fourth Amendment protections by requiring warrantless arrests absent “exigent circumstances.”

From Alaska Justice Forum
A publication of the Justice Center
University of Alaska Anchorage
Fall 2008, Vol. 25, No. 3

Alaska’s mandatory arrest statute was passed as part of the Domestic Violence Prevention and Victim Protection Act of 1996 with the support of prosecutors, law enforcement, and advocates for domestic violence victims in the state. Alaska Statute 18.65.530, “Mandatory arrest for crimes involving domestic violence, violation of protective orders, and violation of conditions of release,” sets out conditions for arrest and minimum sentencing requirements.

A law enforcement officer is required to make an arrest with or without a warrant:
If the officer has probable cause to believe the person has, either in or outside the presence of the officer, within the previous 12 hours, (1) committed domestic violence, except an offense under AS 11.41.100-11.41.130, whether the crime is a felony or misdemeanor; (2) committed the crime of violating a protective order in violation of AS 11.56.740; (3) violated a condition of release imposed under AS 12.30.025, 12.30.027, 12.30.029….

Note: AS 11.41.100-11.41.130 pertains to murder – not applicable herein.

Narciss’ accusations against Westley were incidents not “within the previous 12 hours”, as stated in the Statute. This renders the provisions of the “mandatory arrest” statute moot, regarding arresting Westley. Probable Cause was also deficient.

The term Probable Cause comes from the Fourth Amendment of the United States Constitution:

“The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.”

Alaska Statute 18.65.530 (c) A peace officer is not required to make an arrest under (a) of this section if the officer has received authorization not to arrest from a prosecuting attorney in the jurisdiction in which the offense under investigation arose.

Upon the Delian Chief’s duty cell phone contact list, he has the prosecuting attorney’s phone number, cell and office. Also, all he needed to do was call dispatch to get the number, if not already on his cell phone.

Warrantless Arrest in the Suspect’s Home:
The Fourth Amendment protects individuals from unreasonable searches and seizures (U.S. Const, amend.IV)

These protections against unreasonable searches and seizures are strongest in a person’s own home, and searches inside the home are presumptively unreasonable. Payton v. New York, 445 U.S. 573, 590 (1980)

Noting that warrantless seizures inside the home were presumptively unreasonable, the Court held that this arrest was unconstitutional because the “exigent circumstances” bar was almost impossible to meet when the resulting arrest was from only a minor offense. Id. At 749-50 (quoting Payton, 445 U.S. at 586) interestingly, in a pair of footnotes the Court suggested that the constitution may require “an absolute ban on warrantless home arrests for certain minor offenses”

Exigent circumstance means the following:
An emergency situation requiring swift action to prevent imminent danger to life or serious damage to property, or to forestall the imminent escape of a suspect, or destruction of evidence. There is no ready litmus test for determining whether such circumstances exist, and in each case the extraordinary situation must be measured by the facts known by officials. People v. Ramey, 545 P.2d 1333, 1341 (Cal. 1976)

Arrest Following Consensual Entry:
In Steagald v. United States the Court stated “absent exigent circumstances or consent, an entry into a private dwelling to conduct a search or effect and arrest is unreasonable without a warrant.”

The Court reasoned in Florida v. Jimeno “the standard for measuring the scope of a suspect’s consent under the Fourth Amendment is that of ‘objective’ reasonableness – what the typical reasonable person would have understood by the exchange between the officer and the suspect?” Jimeno, 500 U.S. at 251 A reasonable person would not think that permitting an officer inside the door to talk was an agreement to search or seize his own person.

The California Court of Appeals has explained:
“It is established law that the police may not justify a warrantless arrest if the limits of the consent to enter a home have been exceeded. A police officer’s right to enter is limited to the scope of the consent. A consent to enter for the purpose of talking is not consent to enter for the purpose of making an arrest of the suspect.”

 

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