Virginia Criminal Law and Virginia Criminal Procedure relating to the authority of law enforcement officers to arrest a suspect in situations where they do not have an arrest warrant is complicated and is not necessarily what one would expect.  Perhaps that is why, in my experience many police officers, prosecuting attorneys and judges do not understand the law in this area.  I've heard officers and prosecutors say, and I've had judges rule, that Virginia law allows officers to arrest (without an arrest warrant) and take into custody any person - for any criminal offense - as long as the officer has probable cause.  This is simply not true.  (See Sections 19.2-74 and 19.2-81 of the Code of Virginia)

  • CAVEAT:  Please understand this work deals with the authority of law enforcement officers to take action and arrest a suspect without a warrant.  DO NOT CONFUSE this issue with the issue of the manner / method of effecting the arrest - release on a summons vs. take the suspect into custody.  That issue is addressed in a separate work.   
  • ARREST WITH A WARRANT: Of course, if an officer has a Virginia arrest warrant (issued from anywhere in the Commonwealth), that officer may arrest the named person in the officer's jurisdiction.  This work addresses the Virginia Criminal Law and Virginia Criminal Procedure relating to the authority to arrest when an officer does not have an arrest warrant for the suspect. 
  • ARREST WITHOUT A WARRANT: Assuming an officer has probable cause to believe a certain suspect committed a certain offense, can the officer arrest the suspect without a warrant?  Maybe.  Virginia law differs depending on whether the alleged offense is a felony or misdemeanor, and if a misdemeanor, whether it was committed in the officer's presence.  
  • FELONY:  Under Virginia law, if a person is suspected of committing a felony criminal offense, law enforcement officers have the authority to arrest the suspect without a warrant - whether the alleged offense was committed in the presence of the officer or not.   
  • MISDEMEANOR:  The authority of law enforcement officials to arrest, under Virginia law, for misdemeanor offenses depends in part on whether the alleged misdemeanor offense was committed in the presence of the officer.                 
  • COMMITTED IN PRESENCE OF OFFICER:  As with felony criminal offenses, Virginia law authorizes law enforcement officers to arrest suspects for misdemeanor criminal offenses committed in the presence of officers.
  • NOT COMMITTED IN PRESENCE OF OFFICER:  However, in Virginia, the general rule is that law enforcement officers may not arrest, without a warrant, someone suspected of committing a misdemeanor criminal offense outside the presence of the officer.  As with any general rule, there are exceptions and officers are permitted to arrest in Virginia, without an arrest warrant, persons suspected of committing misdemeanor offenses outside the presence of law enforcement officers in certain circumstances, including: 
    • at the scene of an accident in Virginia involving a motor vehicle, watercraft or motor boat
    • at a medical facility to which one involved in an accident was transported in Virginia
    • apprehension of a suspect in Virginia involved in the theft of a motor vehicle
    • a DUI suspect involved in an accident, anywhere in Virginia, within 3 hours of the accident
    • a fugitive in Virginia who is wanted in another jurisdiction
    • a suspect wanted elsewhere in Virginia and notification that a warrant is on file
    • shoplifting in Virginia
    • carrying a weapon on school property in Virginia
    • assault and battery in Virginia
    • brandishing a firearm in Virginia
    • destruction of commercial / business property in Virginia

See Section 19.2-81 of the Virginia Code (Arrest Without Warrant Authorized in Certain Cases) set out below.  

If a person is suspected of having committed a misdemeanor criminal offense outside the presence of a law enforcement officer and the offense is not listed, under Virginia law the officer does not have authority to arrest the suspect without a warrant.  Of course, this does not mean the suspect can not be prosecuted for the alleged offense; it simply means the officer does not have authority to arrest the person without a warrant.  The officer is free to seek a warrant, and if successful, return to arrest the suspect with the warrant. 

The knowledgeable, experienced and successful Virginia Criminal Defense Lawyers of The Wilson Law Firm are able to discuss this with you in more detail.   

Section 19.2-81 of the Virginia Code, Arrests Without Warrants

§ 19.2-81. Arrest without warrant authorized in certain cases.

The following officers shall have the powers of arrest as provided in this section:

1. Members of the State Police force of the Commonwealth;

2. Sheriffs of the various counties and cities, and their deputies;

3. Members of any county police force or any duly constituted police force of any city or town of the Commonwealth;

4. The Commissioner, members and employees of the Marine Resources Commission granted the power of arrest pursuant to § 28.2-900;

5. Regular conservation police officers appointed pursuant to § 29.1-200;

6. United States Coast Guard and United States Coast Guard Reserve commissioned, warrant, and petty officers authorized under § 29.1-205 to make arrests;

7. The special policemen of the counties as provided by § 15.2-1737, provided such officers are in uniform, or displaying a badge of office;

8. Conservation officers appointed pursuant to § 10.1-115; and

9. Full-time sworn members of the enforcement division of the Department of Motor Vehicles appointed pursuant to § 46.2-217.

Such officers may arrest, without a warrant, any person who commits any crime in the presence of the officer and any person whom he has reasonable grounds or probable cause to suspect of having committed a felony not in his presence.

Any such officer may arrest without a warrant any person whom the officer has probable cause to suspect of operating a watercraft or motor boat (i) while intoxicated in violation of subsection B of § 29.1-738 or (ii) in violation of an order issued pursuant to § 29.1-738.4, in his presence, and may thereafter transfer custody of the person suspected of the violation to another officer, who may obtain a warrant based upon statements made to him by the arresting officer.

Any such officer may, at the scene of any accident involving a motor vehicle, watercraft as defined in § 29.1-712 or motorboat, or at any hospital or medical facility to which any person involved in such accident has been transported, or in the apprehension of any person charged with the theft of any motor vehicle, on any of the highways or waters of the Commonwealth, upon reasonable grounds to believe, based upon personal investigation, including information obtained from eyewitnesses, that a crime has been committed by any person then and there present, apprehend such person without a warrant of arrest. For purposes of this section, "the scene of any accident" shall include a reasonable location where a vehicle or person involved in an accident has been moved at the direction of a law-enforcement officer to facilitate the clearing of the highway or to ensure the safety of the motoring public. In addition, such officer may, within three hours of the occurrence of any such accident involving a motor vehicle, arrest without a warrant at any location any person whom the officer has probable cause to suspect of driving or operating such motor vehicle while intoxicated in violation of § 18.2-266, 18.2-266.1, 46.2-341.24, or a substantially similar ordinance of any county, city, or town in the Commonwealth.

Such officers may arrest, without a warrant or a capias, persons duly charged with a crime in another jurisdiction upon receipt of a photocopy of a warrant or a capias, telegram, computer printout, facsimile printout, a radio, telephone or teletype message, in which photocopy of a warrant, telegram, computer printout, facsimile printout, radio, telephone or teletype message shall be given the name or a reasonably accurate description of such person wanted and the crime alleged.

Such officers may arrest, without a warrant or a capias, for an alleged misdemeanor not committed in his presence when the officer receives a radio message from his department or other law-enforcement agency within the Commonwealth that a warrant or capias for such offense is on file.

Such officers may also arrest without a warrant for an alleged misdemeanor not committed in their presence involving (i) shoplifting in violation of § 18.2-96 or 18.2-103 or a similar local ordinance, (ii) carrying a weapon on school property in violation of § 18.2-308.1, (iii) assault and battery, (iv) brandishing a firearm in violation of § 18.2-282, or (v) destruction of property in violation of § 18.2-137, when such property is located on premises used for business or commercial purposes, or a similar local ordinance, when any such arrest is based on probable cause upon reasonable complaint of the person who observed the alleged offense. The arresting officer may issue a summons to any person arrested under this section for a misdemeanor violation involving shoplifting.

(Code 1950, § 19.1-100; 1960, c. 366; 1974, c. 241; 1975, c. 495; 1976, cc. 515, 570; 1977, c. 97; 1979, c. 268; 1982, c. 272; 1983, c. 206; 1984, c. 534; 1985, c. 507; 1988, cc. 353, 744, 752, 853; 1989, c. 726; 1990, cc. 635, 744, 784; 1995, c. 465; 1996, cc. 866, 929, 1015; 1998, c. 684; 2004, c. 949; 2005, cc. 88, 435; 2008, cc. 460, 737.)